Citation Numbers: 133 Mo. App. 187, 113 S.W. 225, 1908 Mo. App. LEXIS 317
Judges: Bland
Filed Date: 10/20/1908
Status: Precedential
Modified Date: 10/19/2024
Omitting captions and signatures, the pleadings are as follows:
Petition.
“Plaintiff states that prior to the month of November, 1890, plaintiff and defendant had been associated together in business for several years; that between the years 1884 and 1889 he and the said defendant had been engaged as partners in the practice of law at the city of Shelbyville, in the State of Illinois.
“That in or about the month of November, 1897, plaintiff and defendant agreed to form a partnership for the purpose of obtaining or controlling a right of way between the cities of East St. Louis and Belleville, in the State of Illinois, over the turnpike between said cities, with a view to the construction and operation of an electric railway between the said cities; that in pursuance of said agreement, and as part thereof, plaintiff and defendant agreed to attempt to obtain a controlling interest in the St. Clair County Turnpike Company, a corporation organized under the laws of the State of Illinois, owning and operating a turnpike road between said cities of East St. Louis and Belleville; that it was further agreed between said parties that all stock so to be purchased should be divided equally between them, each party paying his one-half of the cost thereof, and that all stock so to be purchased should be held and managed in common and by the parties hereto as partners; that neither of said parties should, without the consent of the other, sell any portion of the stock so purchased.
“Plaintiff further states that in pursuance of said agreement, plaintiff and defendant did in November, 1890, purchase three hunlred and fifty-seven (357) shares of the capital stock of the said St. Clair County Turnpike Company, each of said parties paying one-half of the purchase price thereof.
*191 “Plaintiff states that thereafter in pursuance of said partnership agreement shares of the capital stock of said St. Clair County Turnpike Company were purchased from time to time by said plaintiff and defendant, severally, and that the shares of stock so purchased were thereupon divided equally between plaintiff and defendant, and paid for by the plaintiff and defendant, share and share alike; that the amount of stock so purchased and owned by plaintiff and defendant in the year 1897 aggregated the sum of six hundred and twenty-five (625) shares; that the entire capital stock of said St. Clair Turnpike Company aggregated twelve hundred and seventy (1270) shares, of which two hundred and seventy (270) shares were at all times herein mentioned retained in the treasury thereof as treasury stock of said company.
“That for some years prior to the year'1897, in pursuance of said agreement, defendant had occupied the position of president of the said St. Clair County Turnpike Company, and plaintiff during the same time had occupied the position of secretary and treasurer of said company, both plaintiff and defendant receiving the same salary as such officers.
“That during the entire period prior to 1897, during which plaintiff and defendant were connected with the said Turnpike Company, plaintiff had active control and management of said company, and devoted all the necessary attention to the business of said company, defendant being during all said period in poor health, and unable to give his time and attention to the business of the said company.
“Plaintiff further states that for several years prior to the year 1897, he and the defendant, in conjunction with one D. P. Alexander, had made efforts to obtain franchises that would enable them to build an electric railway over the said turnpike road, and during the said years had respectively obtained various franchises with*192 the view and purpose of building said electric railway from East St. Louis to Belleville, and that each of the said parties bad during said period made efforts to interest capitalists in tbe building of said electric railway, but that prior to the month of November, 1897, all of the efforts of said parties had been of no avail.
“That in the month of November, 1897, the firm of Townsend, Reed & Company, being desirous of constructing and operating an electric railway between the said cities of East St. Louis and Belleville over the turnpike then owned by the said St. Clair County Turnpike Company, entered into negotiations with the defendant for the purchase of the six hundred and twenty-five (625) shares of the capital stock of the St. Clair County Turnpike Company, then owned and held by plaintiff and defendant as partners in the manner and upon the terms hereinbefore set out; that all of said negotiations were had by the said firm of Townsend, Reed & Company with defendant, who was acting on behalf of himself and plaintiff in the city of St. Louis, while plaintiff was residing in the city of Shelbyville, Illinois, and attending to the business of said St. Clair County Turnpike Company.
“Plaintiff further states that in pursuance of said negotiations, plaintiff and defendant did, on November 12th, 1897, enter into a contract with said firm of Townsend, Reed & Company, by the terms of which plaintiff and defendant agreed to sell the said six hundred and twenty-five (625) shares of stock so held by them in the St. Clair County Turnpike Company for the sum of forty thousand dollars ($40,000), payable one thousand dollars ($1,000) in cash, and the balance of thirty-nine thousand dollars ($39,000) in one year from the date of the making of said contract, and did further agree to obtain for the said firm of Townsend, Reed & Company the right to construct and operate a double track railroad on the property and right of way of the St. Clair County*193 Turnpike Company from East St. Louis, Illinois, to Belleville, Illinois. That thereupon, and in pursuance of said contract, the sum of one thousand dollars ($1,000) was paid by the said Townsend, Reed & Company to plaintiff and defendant, each of whom received one-half of the amount so paid, to-wit, the sum of five hundred dollars ($500).
“Plaintiff further states that all of the negotiations leading up to the making of the said contract -with Townsend, Reed & Company were conducted by the defendant Stephenson, acting for himself and -plaintiff, and that during the whole of said negotiations the defendant acted as the representative and agent of plaintiff, and of the joint interests held by plaintiff and defendant in the said Turnpike Company as hereinbefore set out.
“Plaintiff further states that at the time of entering into said contract, and as part of the consideration moving from said firm of Townsend, Reed & Company to plaintiff and defendant for the making of said contract, the said firm of Townsend, Reed & Company had orally agreed with the defendant that they would deliver to him individually as an additional consideration five thousand dollars ($5,000) of first mortgage bonds in a railroad company thereafter to be organized under the laws of the state of Illinois for the purpose of owning and operating a double-track railroad between the cities of East St. Louis and Belleville.
“Plaintiff states that at the time of the making of the contract aforesaid, and during all of the negotiations leading up to the execution of the said contract, defendant concealed from plaintiff the fact that he was to receive the said additional consideration, and for the purpose of concealing said fact, did enter into a separate agreement in writing with the said firm of Townsend, Reed & Company for the delivery to the defendant in*194 dividually of the said five thousand dollars ($5,000) of bonds.
“Plaintiff further states that the said agreement so made by defendant was a secret agreement entered into by defendant in fraud of the rights of plaintiff; that plaintiff at the time of the making of the contract was ignorant of the said secret agreement between defendant and.said firm of Townsend, Reed & Company, and did not learn of the making of same until some time during the year 1900.
“Plaintiff further states that after the making of the agreement hereinbefore recited, said firm of Townsend, Reed & Company proceeded to organize a corporation for the purpose of building an electric railway between East St. Louis and Belleville, and did in pursuance of the secret agreement hereinbefore mentioned between them and the defendant deliver to defendant five thousand dollars ($5,000) of first mortgage bonds issued by said corporation.
“Plaintiff further states that said five thousand dollars ($5,000) of first mortgage bonds so delivered to defendant were sold by the defendant some time during the year 1899, and exact date being unknown to plaintiff ; that defendant received therefor the sum of twenty-five hundred dollars ($2,500), no part of which has ever been paid to plaintiff.
“Plaintiff states that by reason of the premises, there is due to Mm from defendant the sum of twelve hundred and fifty dollars ($1,250), together with interest thereon from date when the said sum of twenty-five hundred dollars ($2,500) was received by the defendant.
“Plaintiff further states that on, to-wit, the seventh day of November, 1898, the said firm of Townsend, Reed & Company finding that they would be unable to carry out their contract with plaintiff and defendant to pay them the sum of thirty-nine thousand dollars ($39,000)*195 on November 12, 1898, as hereinbefore set ont, did enter into a new agreement with plaintiff and defendant, in cancellation of the agreement theretofore entered into by them, dated November 12, 1897; that in and by said new agreement, it was provided that the said firm of Townsend, Reed & Company should pay to plaintiff and defendant on or before twelve (12) months from date, the sum of thirty-five thousand dollars ($35,000).
“Plaintiff states that after the making of said new agreement, the defendant represented to plaintiff that in order to obtain the said new agreement, he, and defendant, had been compelled to surrender to Townsend, Reed & Company all bonus that he had received from said firm on account of moneys loaned by defendant to assist said firm of Townsend, Reed & Company in the building of an electric railway, and that he, the defendant, had received nothing whatever from said firm of Townsend, Reed & Company in return for the surrender of said bonus. Plaintiff further states that thereupon, and by reason of the representations so made by defendant to plaintiff, plaintiff was induced to agree, and did then and there agree, to give to defendant the sum of five hundred dollars ($500) out of the seventeen thousand five hundred dollars ($17,500) thereafter to be received by plaintiff under the new contract of November 7, 1898, hereinabove referred to.
“Plaintiff further states that on said seventh day of November, 1898, and at the time when he agreed to give to defendant the said sum of five hundred dollars ($500), as aforesaid, the defendant had in his possession the five thousand dollars ($5,000) of first mortgage bonds hereinbefore referred to; that plaintiff at the time he agreed to give defendant the said sum of five hundred dollars ($500) was ignorant of the fact that defendant had received the said mortgage bonds, or that he then had the same in his possession, and that plaintiff did not learn until a long time thereafter that defendant had re*196 ceived anything from the said firm of Townsend, Reed & Company other than what plaintiff himself had received, and that he entered into the said agreement with defendant in utter ignorance of the fact that defendant had theretofore received any consideration from the firm of Townsend, Reed & Company in addition to what plaintiff had received.
“Plaintiff further states that thereafter, to-wit, on November 28, 1899, he received from the firm of Townsend, Reed & Company, the sum of seventeen thousand five hundred dollars ($17,500) as provided in said contract November 7, 1898, and that he paid to defendant out of said amount the sum of five hundred dollars ($500) as theretofore agreed; that the payment of said sum of five hundred dollars ($500) by plaintiff to defendant was paid as a gratuity, wholly in consideration of the representations theretofore made by defendant to plaintiff, and in ignorance of the fact that defendant had received and then had in his possession the five thousand dollars ($5,000) of mortgage bonds referred to; that the defendant at the time he induced plaintiff to agree to give him said five hundred dollars ($500) and for the purpose of inducing plaintiff to agree to give the said five hundred dollars ($500) as a gratuity, concealed from the plaintiff the fact that he had received and then had in his possession the • said five thousand dollars ($5,000) of mortgage bonds.
“Plaintiff further states that the conduct of the defendant in inducing plaintiff to agree to give him the said sum of five hundred dollars ($500) and in concealing from plaintiff the fact that he had received, and then had in his possession, said mortgage bonds, contrary to equity and good conscience, and of the acceptance by defendant from plaintiff of the sum of five hundred dollars ($500) so paid by plaintiff, was, and is, in fraud of the rights of plaintiff.
“Plaintiff avers that by reason of the premises there*197 is due to plaintiff from defendant the further sum of five hundred dollars ($500), together with interest thereon from the twenty-eighth day of November, 1899.
“Wherefore, the premises considered, plaintiff prays that defendant may be adjudged to pay to plaintiff the said sums of twelve hundred and fifty dollars ($1,250) and of five hundred dollars ($500), together with interest thereon, and costs of suit.”
Answer.
“Now comes the defendant in the above entitled cause and for his ansAver to the plaintiff’s petition denies each and every allegation therein.
“And further answering the defendant avers that on or about the seventeenth day of November, 1899, he and the plaintiff had a full and complete accounting and settlement between themselves and struck a balance and that he thereupon paid the .amount thereof to the plaintiff and that since said date he has had no dealings or transactions Avhatever Avith the plaintiff.
“Wherefore, having fully answered, defendant prays to be dismissed with his costs.
On the next day plaintiff filed his reply in the nature of a general denial.
Defendant’s counsel demanded trial by jury. The court ruled that the petition stated an action in equity and denied the request for a jury trial, from which ruling defendant’s counsel saved an exception. After hearing the evidence and making a special finding of the facts, the court rendered judgment on the first count of the petition for plaintiff, assessed his damages at $1,565, and found the issues on the second count for defendant. Both parties appealed from this judgment.
The action is for the sole purpose of recovering a money judgment. The allegation that plaintiff and defendant were partners is but the conclusion of the pleader. Whether or not they were partners, is a ques
The evidence offered by plaintiff shows that he and defendant bought, from time to time, six hundred and thirty shares of the capital stock of the St. Clair County Turnpike Company, a corporation, for the purpose of getting a controlling interest in that corporation, with