Cherry v. Chorn

Upon the original submission of this cause I was, and am now, of the opinion that the position of defendant, as shown in his brief and oral argument, was and is wholly untenable. Consequently a disagreement arose between Judge ARNOLD and myself and Judge WILLIAMS was selected as a special judge to sit in the case. I have concluded that Judge WILLIAMS has properly construed the allegations of the petition.

I am of the opinion that the petition is ambiguous in its allegations as to whether the shares of stock sought to be sold were those owned by defendant when the contract was signed or when it was to be executed. If the former, the contract is good; if the latter, it is bad. The petition is, therefore, ambiguous, and under the rule that all ambiguities are to be taken against the pleader (Price v. Mining Co., 83 Mo. App. 470), the petition must be construed as Judge WILLIAMS has held. We are required to uphold the judgment of the trial court if we can do so upon any ground even though the reason advanced by us may not be suggested by counsel. I, therefore, concur in the opinion of Judge WILLIAMS.