110 Mo. 114 | Mo. | 1892
Marcus A. Wolff brought this suit against James Campbell to recover $2,500 and interest. The facts, which are not disputed, are:
The plaintiff is a real-estate agent, and the defendant a dealer and broker in notes and other securities. On the twentieth of October, 1887, defendant called at plaintiff’s office and offered to sell twenty-live shares of stock of the Fifth National Bank of St. Louis. After some negotiations the plaintiff agreed to take the stock at par and give his note therefor for $2,500 due at ninety days, the note to be secured by the stock. No-particular shares were mentioned, nor did defendant state that he was acting as broker for any other person.
On the thirty-first of October, 1887, the defendant sent a messenger boy to the plaintiff’s office with a note. The plaintiff at that time signed the note thereby promising to pay to the defendant or order the sum of $2,500 in ninety days with interest from date. At the same time plaintiff executed a writing to defendant pledging the shares of stock to defendant as collateral security for the note. There was also delivered to the plaintiff at the same time a receipt signed by the defendant whereby he acknowledged that he held twenty-five shares of stock to be delivered to plaintiff
The bank failed in seven or eight days after the date of the note, and the stock then became worthless. A few days before the note matured, to-wit, on the twenty-sixth of January, 1888, the defendant borrowed ten shares of stock from one person and fifteen from another, giving them his receipts therefor, and stating therein that the stock was “to be returned on demand.” He then attached the certificates for the stock thus borrowed to the note, and sold the note to a Mr. Trask for a valuable consideration. Trask sued plaintiff on the note and recovered judgment which plaintiff paid, and then commenced this suit to recover back the money so paid on the judgment.
The plaintiff avers in his petition that defendant represented that he held twenty-five shares of stock and could and would deliver the same to plaintiff in consideration of the latter’s note; that relying upon such representations he accepted the offer and was thereby induced to execute to defendant his note and the writing pledging the stock, and to accept the defendant’s receipt for the stock as held as collateral security for the note; that such representations were false and fraudulent; and that the defendant had and held no stock. The answer of the defendant admits the sale of the stock and the execution of the note and other papers, but denies that any representations made by him were false. He then avers that he was a banker and broker engaged in buying and selling bonds and
On motion of the plaintiff, the court struck out the averments of the answer concerning the alleged custom, to which ruling the defendant excepted. Plaintiff denied the other averments of the answer setting up new matter.
Plaintiff produced considerable evidence including the deposition of the defendant. This evidence discloses the facts before stated, most of which were admitted by the pleadings. The only real issue in the case was as to the alleged false representations.' As bearing on this issue the plaintiff testified that defendant came to his office and said he had twenty-five shares of stock of the Fifth National Bank that he would sell; that after some negotiations he agreed to buy the stock on the terms before stated; that defendant said, “I will keep the stock as collateral to the note,” and plaintiff replied “all right.”
Defendant in his deposition read in evidence by the plaintiff says he told plaintiff he had twenty-five shares of stock for sale; that he sold it to plaintiff on ■ninety days’ time with'the stock as collateral security to the note. He states further that as soon as the transaction was closed he informed his customer, who declined to carry out the contract, because he wanted
On this state of the case the court directed a verdict for plaintiff, and refused all the instructions asked by the defendant.
Here the gravamen of the charge is that defendant represented that he had twenty-five shares of stock which he could and would deliver, when, in fact, he had no such shares. The alleged custom whereby a broker sold stocks and securities in his own name, without disclosing the name of his principal, and became personally bound to perform the contract, does not affect the charge made in the petition. If the defendant made the false representation that he had the stock, and the sale was closed by plaintiff on the faith of that representation, then the custom has nothing to do with the case; for it was immaterial whether defend
But where a judgment is manifestly for the right party it ought not to be reversed. Here the note, the contract signed by the plaintiff pledging the stock back to defendant, and the defendant’s receipt were in evidence. The answer in express terms admits the execution of all these instruments. The agreement pleaded, admitted and proved by these instruments was, that defendant sold and delivered twenty-five shares of stock to plaintiff, for which he executed his note and pledged
The fact that the defendant procured the worthless shares a few days before the note became due and attached the certificates to the note was no compliance with the contract. It was a mere subterfuge. As we have said, the transaction, as evidenced by the written instruments themselves, amounted to a representation by the defendant that he had and held the twenty-five shares of stock at the date of the note, and that the title thereto vested in the plaintiff, a representation admitted and conceded to have been untrue.
The fact that no particular shares were named, and that the plaintiff trusted defendant to attach the certificates, supposed to be then in his possession, to the note cannot affect the result. The judgment is manifestly for the right party, and it is affirmed.