*1 Beavers, sale, M. M. trustee who testified made C. C. Jennings, Life, the Missouri $3999, State bid that that was highest bid. Jennings $3999; C. by- C. testified he bid bid made last Barton deed, $3998. the recitals of which trustee’s are prima true, was introduced in evidence is but in the facie printed record. chancellor saw deed and we therefore respect assume the statements therein in bid amount of the harmony were in with the evidence of trustee and the success- ful preponderance bidder. The the evidence the bid shows $3999.
The insistence in pro- transaction was violation of the visions of section Statutes based Bevised is on the fact salary that the of Bees Barton $200 from $350 increased month, per and that the amount of increase to be applied as payments on the notes. payment $500 The down was made salary; paid before Barton paid $1000- an increase in and he $1500 employment after March, termination of his 1929. Upon receiving possession took deed he of and thereafter culti- vated a farm, finally sell person, endeavored to third convey offered company payment it to the insurance debt. These are not claim acts consistent that the trans- merely colorable, action was not bona fide.
After brought, plaintiff this suit was became the owner of the notes, party plaintiff.” leave of court “was substituted as judgment Sperry, G., affirmed. is concurs. foregoing opinion PEE CUBIAM:—The is Campbell, C., opinion adopted judgment Sham, as court. The is affirmed. J., J., Bland, concur; Kemp, sitting. P. J., not City Dependant A. M. Sharon, Error, v. Kansas Granite & Corporation, Company, Monument Plaintiff Error. (2d) 125 W. 959. City Appeals. January
Kansas Court of 1939. *3 (& in error. Woods for
Burns *6 Epstein n Thurman L. McCormick I. and Herman for defendant error.
CAMPBELL, error, plain- C.—Defendant hereinafter called tiff, brought against suit error, this called hereinafter alleged damages of 15 defendant, conversion recover for the capital shares company. stock in the Plaintiff had a defendant judgment verdict of $3000. the amount obtained Defendant a writ of error to review the trial record of court.
The evidence shows Feb- defendant, corporation, a Missouri on ruary 1912, Smith, to A. president, issued M. its capital certifi- stock; shares its issued secretary, cate No. 13 for 5 D. J. capital shares of stock to its its Smith, February 1914; Sharon, P. brother of Smith, plaintiff, the owner of note A. W. became executed payment 12; there- of which secured said after A. Smith delivered of said P. both certificates to S. Sharon *8 payment printed The the in of balance the note. for the of blank assignment signed certificate No. 12 back W. of on thereof A. was the assignment 13 Smith. The blank form on certificate No.' was same of signed signed by J. The its face D. Smith. certificate was latter on 1916,” defendant’s'secretary. (Thereafter, D. J. Smith as “in about plaintiff S. P. his payment Sharon delivered the certificates of in latter.) plaintiff cer- by note In caused the June, held the presented de- attorney tificates to be to the and its and defendant represented the by manded that stock be transferred certificates On to him on the the defendant. The refused. books of demand was stating attorneys attorneys 13 plaintiff’s June wrote to defendant’s demanded, stock, transfer been they of understood had years prior Smith; more than 18 was Mr. that formerly held stock” defendant that “this thereto evidence was furnished to the then in destroyed; issued, which was been stock was that new had upon persons, “you ought us evidence to furnish hands other of right we can transfer of the “so you base” claim of to a stock .which ’ just tell we stand. where signature effect expert to the opinion There that the was per- 13 was of No. written D. Smith on the face certificate J. cer- certificate. Smith back of that D. J. on the who son wrote evidence without assignments were received in thereof tificates and presented certif- plaintiff nor P. Sharon objection. Neither S. June, in 1930. for transfer until icates defendant, that introduced by deposition, in J. D. testified Smith 1926 City until Smith, in Kansas A. W. lived husband, she and her years 3 her husband some state; that died another moved then and signature deposition; her that taking time of prior to the signature, 13 was not her of certificate the back on D. J. Smith that certificate, was .owner of that on and that the she the face of the signature. certificate was her witness, Guidici, defendant’s he connected testified had been with defendant since 1910. He stub of certificate identified book, the defendant’s stock it been that book his said had in knowledge since about 1914. stub from evi-. was excluded appears, however, dence. It that A. Smith wrote the stub following: destroyed by “This certificate was A. W. fire lost. Smith.” ... . alleged The .answer on which the was cause tried that upon” Smith; 'No. one A. W. Febru- “sued issued to that 1914, Smith, ary, president defendant, repre- who then destroyed thereupon it that sented to said certificate was lost or stock, duplicate time, it issued “in lieu of said at said certificates 12;” said certificate No. stock that so issued cancelled said faith; acquired persons good now the same hands who June, presented that 1930, certificate No. 12 “aforesaid’’’ was in. plaintiff that stock here- and demand made said transferred to .be in; 1930,. counsel, June, that defendant after and its both before and answer, plaintiff because' facts set forth in demanded of ownership proof that he furnish of said certificate No. 4f ever en- plaintiff proof;. plaintiff failed such to make for to a transfer of stock to himself his titled said barred years duplicate the reason that it had been more than since said plain- cancelled; certificates were issued certificate No. “contrary tiff knew claims” stock and transferors 1916; plaintiff transferors had known thereof since that if or his estopped title now any or interest negligently present that he same for the reason failed assert the years brought than 5 before he period therefor of more a claim *9 permitted stock be to negligently and said to transferred suit, this negligently holders value deferred his demand un- for and innocent the explain facts and circumstances witnesses died who could til had 12; nei- concerning certificate No. defendant believes that said that stock; that if legal plaintiff to the ther nor transferors had title his requested by been as was the 10 shares stock transferred of had resulted; that of would have plaintiff an over-issue stock he the proof that plaintiff never to defendant had furnished he had that defendant not believe that does owner stock of 12; 13 was certificate No. No. that any right interest in certificate or for February 9,. 1914; that demand on to D. J. Smith issued when requested plaintiff, by defendant transfer thereof was made thereof and proof that submit he owner entitled plaintiff to refused, so; that said do plaintiff failed and to. cer: to a transfer but assigned endorsed transferred or never been 13 had No. tificate for have certificate to held Smith; plaintiff that by.D.-J.. claims said
557 years more than 10 acquired same; since he that he never asserted title or interest therein negligently present stock failed to said to the period defendant a more 10 years, of than account of he lost any which he in the stock. The had answer concluded n general with a denial. plaintiff claim that had action no cause of because he failed showing to that submit he was the owner of the certificate applies equal’ force to both certificates. This contention over possession looks the fact were plaintiff, certificates in the appeared assigned to properly they be persons to whom plaintiff prima issued. Thus furnished evidence that he facie 481; the owner of Goodwin, the shares. C. J. Vanstone v. [14 App. 49; Bank, App. Mo. Mitchell v. Newton County Mo. 223, 282 709;W. Luitweiler, Supp. Luitweiler v. N. Y. 894.] appeared that It later defendant in answer it can- its claimed had 1914; negligence, through certificate 12 in that failure celled to present plaintiff estopped time, the certificate at earlier an shares; through lapse claim he plaintiff owned of lost that. time -.certificate, whatever interest had in .the what- he also lost and had ever he he interest ever had in certificate 13 because not as- had present the negligently title or serted interest-therein failed period he years certificate defendant for more after of than acquired, defendant, as .Evidently claimed have the same. shown, contending of June it by the letter knew was that been lost “new” stock stock claimed had issued to persons thereby plaintiff lost all in the interest other certificates. 13, applied both June certificates. letter of the-beginning
It from not plain is defendant determined recognize plaintiff certificate. On these facts as the owner of either required more than re- proof furnish he did with plaintiff was spect certificates. title - assignment of it must be this In connection the Smith, remembered signature A. ’W. defendant’s No. 12 bore the of assignment of No. 13 .the president; bore former secretary. June, 1930, Smith, defendant’s former signature D. J. of In. many signatures its said officers from have-had defendant must signatures readily whether or not the it have could ascertained significant.that genuine; assignments were and it is on the question genuineness A. any at time did not signature genuineness question it Smith, nor did answer.' until its Smith J. filed D.. stub, writing on the of certificate Smith, by A. W. The claim *10 that; destroyed, by issuing new lost or and was the certificate 12 1914 stock in and thereof, thereby converted in lieu certificates conyert corporation for1the to legal impossibility it “was a this hence 558
stock in 1930 as plaintiff concerned,” far this as be sus was cannot tained.
There provision no requiring was in the certificate the owner or present holder to thereof provision certificates for transfer. respect in that was the stock transferable only was books of the upon defendant of the en “properly surrender certificate dorsed.”' The legal holder certificate duty was under no to present any for transfer time. case, supra; at Kellar [Mitchel Mfg. Eureka Brick v. 43 Co., App. Mo. 84.] property defendant its trust its held stockholders. right Plaintiff had to believe defendant not assert claim would a rights stockholder, his hence adverse to as a the Statute of Limitations put plaintiff not in motion until or his transferor was “notified unequivocal some right his act that to the disputed. stock” was Turnpike & Mt. S. Road Co. v. Adm’r, [Owensville Bondurant’s 718; S. W. Rice v. Pacific Railroad, 55 Mo. Neither plain- 146.] tiff nor brother knowledge notice wrongful had acts of Smith in 1914. Not June, 1930, plaintiff until in did or his brother have cause to believe that defendant would claim holder of the certificate was Therefore, not stockholder. Statute Limita- operate tions not right did until his as a disputed shareholder was June, allegation 1930. The in the answer that defendant cancelled certificate No. disproved. 12 was not, Defendant as a matter could of law, cancel the certificate for the reason the certificate not in its possession right possession nor did it have to the thereof. The defense of limitation estoppel urged toas certificate No. in effect are as respect same those made in against 13 and for the same are reasons ruled defendant. there contention no showing evidence D. J. Smith assignment executed No. must be disallowed. The assignment certificate and thereof were by plaintiff introduced objection. without received evidence Thus the court jury believe the defendant was not claiming that assignment purported be, what it namely, act of D. J. deed Smith. v. O’Donoghue, Mo. [Bartlett 564.] Furthermore, expert from there was the jury could assignment. find that D. J. Smith executed the So in no event can prove plaintiff contention that failed due execution of as- signment sustained. be No. 1 is Plaintiff’s instruction criticized for following reasons: (1) require jury to find certificate Failed No. 13 was delivered plaintiff’s authority Smith; (2) brother D. J. re- failed to quire jury that the failure of find to transfer the recognize wrongful; failed to the defense that (3) certificates proof to furnish authority “refused or failed transfer of the endorsement ownership genuineness on the certificates
559 question requested in when by defendant;” (4) require failed to jury plaintiff the to find was the owner of the at time certificates the for demand transfer was made.
The instruction plaintiff did not allow to have the verdict unless jury the Smith; found that certificate by No. was endorsed A. W. that Smith; No. by certificate D. endorsed J. that thereafter A. W. Smith delivered the P. Sharon, certificates the and that latter thereafter delivered plaintiff; said certificates to cer- that said fqr presented tificates June, 1930, to defendant in transfer and that defendant refused to make transfer. the question
There was no agency case; in the no claim A. that W. Smith acting Smith, on behalf of D. J. it not have and would proper been question. to submit such a The instruction did not sub- question mit the as to whether not the refusal to transfer was wrongful by “wrongful,”' required using jury word but it facts find from which follow that necessarily it the refusal would wrongful. There was for good no basis claim that a defendant acted faith refusing 12, transfer certificate it made re- the same No. quirement concerning that certificate which was made reference other to the certificate. The instruction is further criticized for the reason contained “ further, - language: you
the following A. Sharon that M. find knowledge Í2 had no or notice of No. any claims to certificate opposition ownership certificate No. 13 in claim for to his more 5 years than before December 1930.” language jury the quoted
Defendant claims into be- mislead the lieving speak- certificates, strictly certificates were the stock. The ing, parlance they are were not the stock. In common understood qualified juror by Certainly be the no same. would be mislead phrase rep- “certificates” the use instead of “-stock word question by certificates.” of limitation was not resented the case. told No. 3 is for the reason it
Plaintiff’s instruction criticized appearing jury signature D. J. Smith over the word that should be taken the face of certificate and con- secretary, on signature genuine D. J. uncontradicted Smith. The sidered as the D. defendant was the effect both evidence of secretary of that as signed her on the face J. Smith name ques- question, if there were such on the passing In of defendant. assignment disputed signature on the- was or tion, whether as to compare jury genuine, was not signature. admitted jury possession by plain- told instruction Plaintiff’s parties named endorsed 12 and Nos. tiff of endorsed,”' so certificates were believe said you therein, “if find prima ownership certificates of said facie plaintiff. .improper hereinbefore instruction was not for reason stated. plaintiff, damages, 5No. on the measure of
Instruction jury the element into in estimat to be taken consideration advised *12 any, “together ing damages, if other circum all facts and the argues quoted The defendant in the evidence.” the shown stances gave jury the phrase roving of instruction the a commission and au improper fixing damages. it to consider thorized matters in There the un nothing indicating prejudiced in the the or jury is record was ' against party. duly for or There the influenced either is claim no phrase place was the instruc verdict excessive'. "Whilethe in no will v. prejudicial it not cause reversal. tion was [Sallee Co., 798, 807, (2d) 321 Mo. 12 W. Ry. St. Louis-San Francisco 476.] jury the instruction No. 11 would have Defendant’s refused told certificate No. 13 was withdrawn from further consideration. that given have claim this instruction been for the reasons should proof assignment; there J. was no that D. Smith the no endorsed (cid:127) proof agent; undisputed A. Smith her that is plaintiff W. was it proof to furnish of his have the stock failed to transferred. questions been have hereinbefore ad- These discussed and ruled versely and, therefore, the defendant further discussion. no need defendant’s'requested Complaint is made of the refusal of instruc- plain- proof 12. instruction said burden of was on tion No. This the the preponderance a of D. by evidence that J. prove tiff Smith plaintiff that if prove, certificate No. 13 and had failed so to endorsed for defendant on said certificate. the verdict would be then 8¡in jury instruction No. obtained the was Defendant told prove greater plaintiff by weight was the case burden' jury that if of found has failed the credible case, prove his verdict must be for the defendant. to so then plaintiff’s required Considering the fact instruction No. 1 D. J. Smith endorsed certificate No. 13 jury to find together, must be giving we think the that the instructions of read any No. cured error the refusal in- instruction of defendant’s 12. No. struction have No. would' told the if jury: instruction
Defendant’s back signature on the up- “that the certificates it found sued genuine .not them, person on, either of . issued, your . . then verdict must be stock whom such ours.)' Manifestly, (Italics infirmity defendant.” the as- for would not the certificates warrant a finding one a- signment of several clauses in certificate. instruction other gainst disjunctive by or, connected any and if one of them were duty erroneous was the court refuse the instruction. Defendant’s, instruction in the nature of a demurrer to the evi- properly dence refused for reasons above stated. by
The defendant offered to prove introducing stock its book 7, 1914, February that about it issued certificates Nos. represented stock lieu of the certif- 12. The icates were also evidence. offers offered refused. It wére is plaintiff’s claim it defendant’s stock converted issuing in February, permit 1914. certificates If law officers would aof. corporation secretly, make corporate false entries on the record, themselves, wrongs issue false certificates to their conceal for pe- years destroy riod of 5 thus value of certificates of valid stock, corporate have little stocks or no would 'We refuse value. subscribe such a doctrine. for 8 Certificate shares, Guidici, to R. issued D. sec- retary defendant; No. 21, 1 share, issued Smith, president defendant; to A. certificate No. 22, for 1 *13 share, witness, Guidici, to the was who was “connected” with issued the defendant. SO, The words 1916” “cancelled Oct. written were face the of each across certificate. ’ hurt by not the The defendant was of these exclusion’ offers. This it admitted, had evidence, been have shown the certifi- would that wrongfully, were issued were thereafter cates cancelled and returned defendant; plaintiff, to the certificate No. by that was the held ’ represented only outstanding which 10 the shares called by represented the it; by that stock that certificate for was not by any plaintiff; claimed one other than that the certificates issued in of certificate 12 were the lieu not in hands of holders Iona fide alleged the as in answer.
Defendant the court which offered and four were *14 genuine. signatures comparing If the disputed found both
ture and genuine signature jury failed convince the signature with the genuine, comparing not questioned then opinion signature, genuineness of which was shown of one have certainly not defendant. witness, would benefited testify competency P. objected S. Sharon to Defendant which concerning purchase the transaction resulted in sale and because the seller dead. No. 12 of certificate alleged damages for the conversion of the stock action is Tbis all, arose, if when action at refused in 1930. assignor, stock, nothing Plaintiff’s, do to transfer True, plaintiff’s title in of action: cause pleaded brother, directly cause of action accrued through but the came parties title were "to not predecessors Plaintiff’s plaintiff. cause contract or of action” controversy. involved this There- competent fore, P. Sharon testify concerning assign- S. ment him. certificate to R. S. [Section 1929.] S. P. testified in Sharon effect after he received the certificate from W. sought A. Smith he exhibited and sell it Guidiei, R. D. question “chalange”' the latter did not his ownership of Objections grounds to this stock. evidence on the that R. D. made Guidiei was after the questions, dead elicited evidence, were answered. This was late. However, too the witness competent testify to the transactions. fairly tried.
The cause was Sperry, G., affirmed. judgment is concurs. opinion foregoing Campbell, PER CURIAM: —The a- Q., is opinion judgment dopted of the court. as the is Shain, affirmed. Bland, concur; Kemp, J., 3., 3., sitting P. because not a argued court when cause was member and submitted.
George Respondents, al., Eberlin et C. Amanda v. et Brunner Appellants. al., (2d) 543. City Appeals. January 9,
Kansas Court 1939. excluded notes by the to have been defendant. It assumed executed is the defend- obligations and, therefore, these its theory notes were affected ant’s The possession value the stock. notes were the of the of the it may paid. defendant from which be inferred notes were There the 1930,’’ unpaid were these notes “in" was but there was no evidence they paid prior were to June 13. evidence books and records defendant accountant who examined An tax income return relative its assets copy of its federal and its year that as shown net- the testified thus defendant’s during $50,031.18. tending The evidence was admissible as worth was plaintiff’s The accountant also of stock. the the value testified show $26,227.84; according the defendant of net worth good the will adopted accountants of the defendant by the rule $50,000. concerning The the of of the value evidence objected to “because the defendant of good will of value of the the which he com incompetency of witness the by and method the alleged puted good the will.’5' The expert competent witness an accountant to state the of adopted by profession upon rule to calculate value will, good statement that rule. and his was based on by The financial defend plaintiff introduced the statement made secretary Company, ’s December 1930. ant the Bradstreet dated Counsel When the statement wras mentioned defendant’s stated "shows meeting that a financial statement of a stockholders minutes 30, 1930, approved.” is condition of December showing the read showing objection to statement the effect there was no The secretary authority to overruled. had make was by-laws provided "secretary-treas- 10 of defendant’s its Section charge corporate proceedings, have of keep of urer” should record keep other "also other books duties perform books and transfer facts taken connection with the board.” These by prescribed made one of defendant’s chief officers statement was fact allow received in statement be evidence. sufficient Joslyn, (2d) 102 S. W. v. 693.] [Weber However, relating value defendant’s all to the except no bearing any question on amount assets plaintiff, there no com- finding was for as is verdict in event errors, any, harm- verdict, if plaint to the amount of as less. opinion evi- Exhibits produced its signed offered J. exhibit. It then proved dence that D. Smith said sig- jury compare the allowing the purpose for the the exhibit alleged back D. J. thereon with her on Smith nature of genuine signa- 13. The offer was excluded. of certificate No. jury certificate was D. J. Smith the face of the before the ture signature. jury compared questioned comparison with disputed signa- the certificate face of signature on the