Wamack v. Thomas , 173 Mo. App. 231 ( 1913 )

FARRINGTON, J.

—Judgment for defendants in the trial court and plaintiffs appealed.

Plaintiffs in their petition, filed December 17, 1908, alleged that in October, 1907, they sold to the defendants a certain concentrating plant and tools used in connection therewith located on land which they had leased from the General Lead & Zinc’ Company, the consideration for the alleged sale being $7500; that possession was delivered to the defendants, and that they have failed and refused to pay the purchase price. The answer was a general denial.

The facts.in the case are as follows: J. G. Wamack and J. R. Wamack, the plaintiffs, are brothers, and were owners and operators of a mining plant in Jasper county known as the “Twelve O’clock Mine.” During the summer and fall of 1907, they were falling behind in a financial way with the mining business and getting more and more in debt to the Carthage National Bank. On several occasions, from June to October, 1907, the plaintiffs consulted the officers of the bank with reference to making a sale of the mining plant, and they had given options and extensions of options for the sale of the property, and had offered it for sale several times without success. The bank, through one of its officers (defendant Silas A. Stuckey) was insisting upon the plaintiffs paying the money they owed the bank, amounting to $7500. In October, the mine was not being operated, and, according to the testimony of one of the plaintiffs, the agent for the landowner had notified them that the lease was forfeited or that he was going to forfeit it. With their property in this condition, and the bank demanding its money, the plaintiffs went to defendant Stuckey and told him they desired to sell the mining plant and would place a price on it of $7500. They testified that Stuckey told them he thought he would be able to sell the mine for this price, and they admit they turned the property over to Stuckey in that condition of affairs to do the best he could with it. Stuckey immediately saw the agent of the landowner and found that the latter considered that plaintiffs had forfeited their lease, and the agent told Stuckey that he would not let the plaintiffs operate under a lease any longer, nor would he give them a new lease, but, upon being called into consultation with one of the plaintiffs who had charge of this part of the business, agreed that the owner of the land would make a lease to some one that the mine could be sold to. The defendant Stuckey and the plaintiffs understood and knew that the mine would stand a better chance for sale if the business was put on its feet and. started as a going concern; and plaintiffs, with full knowledge that Stuckey was organizing a company for the purpose of putting the mine in condition to operate, and thereby sell it, turned the property over to the defendants, and the defendants, taking charge of the business, called themselves the ‘ ’Twelve O’clock Mining Company.” There is evidence that many times after defendants took charge of the mine, plaintiffs were told by the defendants everything concerning the way it was being handled. These defendants to whom the property had been delivered to put into saleable condition and sell, commenced spending their money on the mine and operating it. It was not a money-maker for them, as the undisputed testimony is that they put into the mine $4000 of their money in fixing it up and operating it. Some time after they had possession of this mine, which plaintiffs claim to have sold them for $7500 in October, 1907, and after some of the defendant’s money had been placed in it in fixing up and getting it in operation, a notice appeared upon the mill that it would be sold under a chattel mortgage which had been given some time before by the plaintiffs and which was a valid, subsisting lien against the property. This notice, tacked upon the mill, according to the undisputed evidence was the first the defendants knew of any mortgage being on the mill which the plaintiffs claim to have sold them. Defendants immediately called on the plaintiffs for this money, and plaintiffs were unable at that time to raise the $2000 but did put up $1000 to pay off the mortgage on the mill which they claim to have sold; and the other $1000 was advanced by defendant W. C. Thomas. Plaintiffs testify that Thomas said when he put up this money that he would allow that to be added to the sale price. The defendants took a lease from the landowner in the name of one. of their number (Thomas), and after failing to make any money on it and being unable to consummate a sale, counting the' money they had put together with the $7500 that plaintiffs agreed to take when the mill was sold, had $12,500 represented by this mining plant. In the meantime, the panic of 1907 came on and the defendants were unable to make a sale. However, they did keep on operating the mine and putting it in shape for sale,-according to their testimony, and finally, with this same end in view, they entered into an agreement with one Marquis, a miner, whereby he was to operate the mine for a period of sixty days or until the mine was sold and they were to give him an additional interest by agreeing that he should have one-half of all over $12,500 that the mine brought in case a purchaser could be found. Defendants explained to him, as the evidence shows, that they (the defendants) were to be reimbursed for their expenditures, that the Wamaeks were to have the first $7500 of the selling price, and then any sum remaining would be divided with Marquis, agreeing that they would place the selling price at $15,000. The mine was not sold although there is substantial testimony that Stuckey and the other defendants were doing all they could to make a sale that would let all parties out and pay the debt of the plaintiffs to the Carthage National Bank.

It is evident to our minds, from this statement of the facts, that there was no sale of this property from the plaintiffs to the defendants in October, 1907; nor was there contemplated at that time 'by any of the parties any sale except such as the defendants might make to some purchaser if they could find one. The property was delivered to them solely for the purpose of getting it into saleable condition and finding a purchaser. Everything that Stuckey did, if the evidence of this record is to be believed, from the time the plaintiffs delivered the property to him and the other defendants, was to put the plant in shape for sale and make attempts to sell it according to the arrangement that was originally entered into between the parties. The evidence of the defendants is that they consulted and advised with the plaintiffs concerning what they were doing, and to say the least, the plaintiffs stood by without objection or complaint and saw the defendants spending their money in putting the mine in, shape to sell. Defendants’ sublease and contract with Marquis was merely an additional agency in keeping the mine going, and a carrying out of the original agreement to put it in shape and sell it, and was in no way conflicting with or in derogation of the arrangement originally made. The record is absolutely barren of any complaint or any demand from the plaintiffs for the return of the property and their silence along this line would indicate that the method and plan and acts of the defendants met with their approval. The petition, the evidence introduced by the plaintiffs, and their declarations of law, discloses that their theory was that there was an outright sale of this property to the defendants in October, 1907, but their evidence, utterly fails to uphold this theory. They seek in this court, according to the third point in their brief, to charge a sale because of the sublease defendants made to Marquis— that is, a conversion of the property and a waiver of the tort by them and suit on the theory of a sale—but this is clearly an afterthought, because the two declarations of law prepared by plaintiffs, one of which was given and the other refused, require, the court to find that the sale was made in October, 1907, whereas all the evidence shows that Marquis was never'connected with the transaction until some time -in December, 1907.

Such a delivery as was made in this case cannot amount to a sale. [Packard Piano Co. v. Williams, 151 S. W. (Mo. App.) 211.]

This was a law ease, tried by the court, and the facts were found in favor of the defendants under proper declarations of law, and should therefore not be disturbed by the appellate court.

The appellants should fail for the further reason that even conceding there was a sale made in October, 1907, for $7500, that price to be paid upon resale of the property and in ease no resale was made then the purchase price to be paid within a reasonable time, what was a reasonable time for the resale of the mining plant, which had ceased operations, requiring. from three thousand to four thousand dollars to start and put in saleable condition,' and in view of the fact that a financial panic came on within a short time after possession was given, all made a question of fact to be determined by the trier of the facts. There was substantial testimony to justify the finding and judgment in this case on this theory. [See, Burks v. Stam, 65 Mo. App. 455, Bryant v. Saling, 4 Mo. 522; Peery v. Cooper, 8 Mo. 205; Fisher v. Chadwick, 34 Pac. 899; Althoff v. Transit Co., 204 Mo. 156, 102 S. W. 642; Turner v. Snyder, 132 Mo. App. 320, 111 S. W. 858.]

Entertaining these views, it is apparent that the judgment should be affirmed and it is so ordered.

Sturgis, J., concurs. Robertson, P. J., concurs except as to what is said in regard to the plaintiffs in this/ court claiming that they waived the alleged conversion by reason of the lease to Marquis and elected to sue on the theory of a sale.