Clubb v. Scullin

STATEMENT. BOND, C. — Plaintiff, a minor when this suit was brought, now of full age and a party to the cause, alleges in his petition that on the 25th of April, 1902, his mother, Eleanore Clubb, as his guardian and curatrix, held 145 shares of stock in the Wiggins Ferry Company, which defendant agreed to sell for the highest market price; that defendant was then a stockholder in the Mercantile Trust Company and “largely interested” in the Chicago, Rock Island & Pacific Railway Company; that said Railway Company was then desirous of procuring control of the Wiggins Ferry Company, through the purchase of a majority of its capital stock; that defendant procured the employment of the Mercantile Trust Company as purchasing agent of said Railway Company;' that defendant agreed with said Railway Company to assist its purchasing agent in procuring a majority of the capital stock of said Wiggins Ferry Company at the price of $500 per sharp; that at said dates and afterwards the Mississippi Valley Trust Company of St. Louis,, as purchasing agent for the St. Louis Terminal Association of St. Louis, was also endeavoring to purchase and acquire the stock of said Wiggins Ferry Company, which was known to the defendant; that defendant sold plaintiff’s shares to the said Railway Company through its purchasing agent for the sum of $500 per share, amounting to $72,500, and delivered the same to the purchaser, and caused a transfer to be made of said stock on the books of said Wiggins Ferry Company; that while so doing, defendant “wrongfully and fraudulently concealed from plaintiff and from plaintiff’s said guardian the fact that he was in any manner interested in either the said Rahway — 593 — Company or its purchasing agent, or was in any wise acting on behalf of either of said companies;” that defendant broke his agreement and acted in violation of his duty as agent in selling said shares of stock for the sum above named, at a time when he had knowledge that they could be sold for $1500 per share, and withheld that knowledge from plaintiff’s guardian and curatrix, well knowing she was ignorant of said fact; that by defendant’s fraudulent refusal to sell said shares at the value of $1500 each, plaintiff lost the sum of $145,000, for which he prayed judgment. The answer was a general denial, coupled with a second defense setting forth the following telegram: St. Louis, April 24, 1902. Ellen Clubb S. C. Clubb, The Grafton, Con. Ay., Washington, D. C. I am offered five hundred dollars per share for a majority or all of'the stock of the Wiggins Ferry Co. Have agreed to-sell all my holdings and strongly recommend you to do likewise. If you concur in my recommendations, send me your stock by mail at once and if the owners of a majority of stock agree to-sell I will forward to you five hundred dollars per share for your holdings on or before May 5th next. Please regard this, as strictly confidential. Wire reply immediately. John Scullin, Pres’t Wiggins Ferry Co. That pursuant to an authority from said Eleanore-Clubb, plaintiff’s guardian and curatrix, defendant signed an agreement to sell the shares of stock of this plaintiff and an equal number of shares of his sister and 179 shares of the said Eleanore Clubb on the terms set forth in the above telegram; that said Eleanore Clubb delivered all of the shares of this plaintiff and of his sister and 34 shares of her own, but failed and refused to deliver the remaining 145 shares of her own, and demanded as a condition of said delivery the payment of the further sum of $145,000; that this defendant had — 594 — thereafter no further connection with the matter, but the said Eleanore Clubb thereafter dealt directly with the Mercantile Trust Company, and entered into an agreement with it on the following terms, to-wit: St. Louis, May' 2, 1902. The Mercantile Trust Company having purchased from Eleanore Clubb, four hundred sixty-nine (469) shares of the capital stock of the Wiggins Ferry Company for the total sum of $379,500, hereby releases and discharges said Eleanore Clubb from any and all claims for damages or otherwise on account of her agreement to sell said shares or any thereof to said Mercantile Trust Company and agree to keep her harmles from any and all such claims. Mercantile Trust Company. By Festus J. Wade, President. Accepted. Eleanore Clubb. The above mentioned purchase of 469 Shares of stock in the Wiggins Ferry Company, and the release of the said Eleanore Clubb, were made with our approval and sanction, and we ratify and confirm the same as done for our benefit. May 2, 1902. The Chicago, Rock Island & Pac. Ry. Co. By Robert Mather, Vice President. That said agreements between the said Eleanore Clubb and the Mercantile Trust Company as the purchasing agent of said railway, and the said railway on its own behalf were in full accord and satisfaction of all claims and demands of whatever nature growing out of the sale of’ any part or all of the said 469 shares of capital stock of the Wiggins Perry Company belonging to the said Eleanore Clubb and plaintiff and his sister. The reply was a general denial. Upon the trial of these issues the evidence tended to show that, consequent to the purchase of the St. Louis & Colorado Railroad, the Chicago, Rock Island & Pacific Railway desired an eastern entrance into the city of St. Louis by acquiring a majority of shares of stock of the Wiggins Ferry Company; that to accomplish this purpose it employed the Mercantile Trust — 595 — Company of St. Louis as a purchasing agent of said stock; that defendant was president of the Wiggins Ferry Company and the owner of a large number of the shares of its capital stock; that the plaintiff and his sister and mother were owners of capital stock of said Wiggins Ferry Company in the following proportion: 145 belonging to plaintiff; same amount belohging to his sister, and 179 belonging to their mother; that after the receipt of the telegram addressed to her by defendant, and set out in defendant’s answer, Mrs. Eleanore Clubb telegraphed in reply, as follows: Baltimore, Md., April 25, 1902. Mr. John. Scullin, Pres’t Wiggins Ferry Co., St. Louis. Accept offer for myself, Helen and Sam. Certificates with Union Trust Company. Eleanore B. Clubb. In reply to which defendant telegraphed her, as follows: St. Louis, Mo., April 26, 1902. (Received at Baltimore April 27, 1902) Mrs. Eleanore B. Clubb. 303 Oakdale Road, Roland Park. Upon authority of your telegraphic reply to my telegram of April 24th, I have accepted in writing for you, Helen and Sam the proposition of Mercantile Trust Company agent of purchasers to purchase at five hundred dollars per share the majority of the stock of Wiggins Ferry Company. Please direct Union Trust Company to deliver certificates to me or to Mercantile Trust Company immediately. John Scullin. Mrs. Clubb on the same day sent the following telegram: Baltimore, April 26, 1902. George A. Mills. Sec’y Union Trust Company, St. Louis, Mo. Sold Wiggins at five hundred. Deliver all certificates you have Scullin. Eleanore B. Clubb. — 596 — That at 1:09 p. m. Monday, April 28, 1902, Mrs. Clubb sent the following telegram to defendant: Baltimore, Md., April 28, 1902. John Scullin, Pres’t., Wiggins Perry Company. St. Louis Trust Company can deliver certificates for 324 shares. The 145 shares are in my safe deposit box. I shall have to go get them. Would the third of May be time enough to deliver them? Answer. Eleanore Clubb. On Monday, April 28, 1902, about 9:30 o’clock p. m., the St. Louis Union Trust Company delivered to defendant the following shares of stock (as per notation on its books): “Helen, 145 shares at. $500.00, April 30, 1902, $72,500; Sam, 145 shares at $500.00, April 30,1902, $72,500; Eleanore, 34 shares at $500.00, April 30,1903, less $6,000 for her loan, leaving $11,000.” That the dates of April 30, 1902, of said interest were incorrect; that the stock was in fact delivered to defendant, as above stated, two days prior, but the check given by the Mercantile Trust Company in payment was received on the date entered above, and was; to-wit: $156,000 April 30, 1902. Pay to the order of St. Louis Union Trust Company one Hundred and fifty-six thousand dollars. George W. Wilson, Treasurer. Treasurer’s check Mercantile Trust Company. That Mrs. Clubb left Baltimore for St. Louis and got there at two o’clock on May 1, 1902, and was visited that evening by the defendant Scullin and the representative of the Mercantile Trust Company; that she had learned before this time of the competitive bidding for the Wiggins Ferry Company stock and its advanced price; that defendant told her that the “Rock Island people” were trying to buy the stock, and that the defendant sold his and gave her the reason — 597 — which influenced him; that before parting the defendant said to her, “Don’t you take less than $750 a share for your stock” (referring to the 145 shares of stock which she had not delivered through him); that she did say, in reply, she would probably sell to the Mercantile Trust Company; that she subsequently sold these .shares of stock to the Mercantile Trust Company for $1500 per share, as shown in the written contract of May 2, 1902, between herself and the Mercantile Trust Company, and approved on the same date by the Chicago, Rock Island & Pacific Railway Company, and hereinbefore set out; that at the time of the transactions evidenced by these writings, she indorsed the previously delivered shares belonging to her two children, and the remaining 145 shares belonging to herself, which had not been delivered until the making of this contract, on the 2nd of May, 1902; that upon the consummation of this transaction she received the cheek from the Mercantile Trust Company, on the same date, for $217,500; that before closing this transaction she had been offered $1,000 per share for her remaining shares of stock by the Mississippi Valley Trust Company, as the representative of the Terminal Railroad Association. The competitive bidding for the stock of the Wiggins Ferry Company was begun by the Mississippi. Valley Trust Company, as agent for the Terminal Association, on Saturday, April 26, 1902, and continued through the following Sunday and until the first few days of May, 1902, when, inferably, some agreement was reached through which the Rock Island Railway Company secured an eastern entrance into the city of St. Louis. Defendant had notice of the beginning of the competitive bidding on Saturday evening, April 26,1902, when a verbal proposition was communicated to the members of the board of directors of the Wiggins Ferry Company through Mr. Church; but this proposition was not in writing, nor the name of the — 598 — proposer given until signed by the Mississippi Valley Trust Company, about five o’clock Saturday afternoon. When thus executed it offered $500 per share for Wiggins stock and $100 moré if a majority was. gotten. There is no evidence that its written terms, were communicated to defendant prior to the delivery by him of the Clubb stock, on Monday,- April 28, 1902. At the conclusion of all the evidence, the court gave an instruction that plaintiff was not entitled to recover, whereupon he took a nonsuit with leave. Upon the overruling of his motion to set aside the same, he appealed to this court. OPINION. I. No question can arise in this case as to the-legal validity of the contract made by the curatrix of plaintiff through the defendant, whereby his shares of stock in the Wiggins Perry Company were transferred and delivered to the Mercantile Trust Company, on April 28, 1902. Whether the curatrix, as such, was empowered to transfer the legal title as well as the possession of said property is not open to review in this case. The reason is, that the sole cause of action pleaded in the petition is the alleged failure of the defendant, as-agent, to get the best market price when he made the sale of the shares of stock. Plaintiff does not question the legal effect of the act of his curatrix or defendant, as her agent in the matter of devolving the full title to-the shares of stock when they were delivered to the Mercantile Trust Company on the 28th of April, 1902. Indeed, he affirms the conveyance of his title and predicates his right to a further recovery solely on the ground that the defendant fraudulently received a less, price than could have been gotten. We are thus relieved from any consideration of'the power of the curatrix to convey the personal property of her ward by virtue of the peculiar relation which she bears to it under the laws of this State. [Judson v. Walker, 155 Mo. 166.] — 599 — Hence, there were only two questions left in this ease: First, whether the contract of sale was made before the shares were delivered to the purchaser, to-wit, April 28, 1902, or when the curatrix subsequently indorsed the shares and made the written contract (in which defendant took no part) on May 2, 1902. Second, whether in his connection with the sale defendant is chargeable with a breach of contract or a violation of his duty as agent. In reviewing the action of trial.courts in compelling and refusing to set aside a nonsuit taken with leave, every reasonable inference which can be drawn from plaintiff’s evidence will be assumed to be true, despite the possibility of contradictory inferences or conflicting evidence-. For the law is settled that all issues either as to inferences or facts must be tried by the jury. Hence, it is only when the evidence as well as the reasonable inferences therefrom are undisputed, and when the applieatory law precludes any recovery, that trial courts are justified in withdrawing a case from the jury. [Forbes v. Dunnavant, 198 Mo. 193; Mockowik v. Railroad, 196 Mo. 550.] We will, therefore, take it for granted in the present case that the sale of plaintiff’s shares of stock was completely executed as to the transfer of title, as well as possession, by virtue of the contract, where-under they were turned over on the 28th of April, 1902. For, obviously, if the plaintiff’s stock was not sold until the contract between his curatrix and the purchaser, of May 2,1902 (in which defendant had no lot), there could be no recovery in this suit, whatever right of action plaintiff might have against his curatrix for .failing to account to him for his proportion of the proceeds of that sale. With reference to the transaction to which the view of the court is thus restricted, the data by which it is to be judged comprise certain telegraphic communications between plaintiff’s curatrix and defendant — 600 — and some oral testimony. There is no dispute as to either. Unless, therefore,, they afford the basis of a legitimate inference . that defendant either broke his agreement or violated his, duty in so far as he acted as agent, there can be no recovery against him. The contract between curatrix and defendant and the relations arising therefrom are clear and simple. The defendant gave notice to the curatrix of an offer for her stock and that of all or a majority of the holders of such stock, which he had accepted for his own, and advised her also to accept, and agreed to send her the purchase price if the terms of the offer were met, and requested the transmission of her stock. The curatrix accepted the offer for herself and her two children, and directed the Trust Company, where it was deposited, to turn it over to defendant. This direction was given Saturday, April 26, 1902, too late to be complied with on that day, but was complied with on Monday morning, April 28, 1902, when the stock was placed in the hands of the buyer. A check in payment was given two days thereafter, the proceeds of which, so far as plaintiff’s shares are concerned, were entered to his credit on the books of the Trust Company, where his stock had been deposited. In the performance of these acts defendant acted in strict accordance with his agreement with the curatrix of plaintiff, and in perfect performance of his duty to the extent of the agency assumed in his contract. When the offer conveyed to plaintiff’s curatrix was accepted, and when she had directed the bailee of the property to deliver it, the sale was complete in every element (since the power of the curatrix to sell is affirmed in the petition), and the bailee thereafter held the shares of stock as the mere agent of the buyer. [Erwin v. Arthur, 61 Mo. 387; Allgear v. Walsh, 24 Mo. App. 134.] These things were done on the 24th, 25th and 26th of April, 1902. On the latter date, and until the Monday following, the St. Louis Union Trust Company — 601 — held possession of the shares of stock now sued for as bailee of the Mercantile Trust Company, which had acquired the full legal title thereto when the euratrix accepted this proposal to buy, and instructed the custodian of the shares to deliver them. After this date the title to the shares was in the buyer, and neither the Trust Company nor the defendant had any legal right to withhold them from the possession of the buyer. The action of the defendant and the St. Louis Trust Company in the delivery of the shares of stock was under the mandate of the euratrix. The only responsibility under which the defendant rested thereafter, as far as his agency was concerned, was the payment of the price. This was shown to have been paid according to the terms of the contract two days later. The agency entrusted to defendant was one which carried no power of judgment or discretion in the performance of the acts prescribed. It charged him neither with the duties nor responsibilities of a general agent. An agency confined to the acceptance of a fixed price and the turning over of the property for which it is paid is not one which saddles the agent with the same Labilities towards his principal which attach, as a matter of law, when one person gives another the power to exercise full judgment and discretion in the sale of property. The latter agency would impose the duty of obtaining the highest market price, and the further duties of a full disclosure of any adverse interest on the part of the agent, and complete loyalty and good faith in the performance of the service, in the doing of which the agent would be permitted to reap no personal profit or advantage, other than his compensation as fixed by contract or by law. It would make no difference whether the agency is for hire or is gratuitous, provided it is actually undertaken and entered upon by the agent. These are familiar principles of law, and are well sustained by the numerous authorities cited in the — 602 — brief of the learned counsel for plaintiff. But these principles of law have no application to mere ministerial acts involving on the part of the agent no power •of judgment or discretion, but only a compliance with particular and definite instructions which have been predetermined and specifically prescribed by his principal. This distinction is clearly pointed out in three •cases that have been before this court, where the relationship of this defendant as agent was substantially the same a,s the one which he assumed in this case. [Newman v. Mercantile Trust Co., 189 Mo. 423; Wann v. Scullin, 210 Mo. 429; State ex rel. v. Dickson, 213 Mo. 66.] Under • the rulings announced in those cases, we hold that it was not incumbent on defendant in the case at bar to inform the curatrix of plaintiff that he was a stockholder in the Mercantile Trust Company, purchasing agent of the buyer, or that he was largely interested in the securities of the Railroad Company which was' seeking to acquire this stock, and that he violated no duty under the agency imposed on him in this case in failing so to do. II. On Saturday, April 26, 1902, the defendant’ acting under the directions of the curatrix of plaintiff’ had accepted the contract of purchase for plaintiff’s stock. The notice given of this sale to the custodian of that stock, and the request to turn it over, completely transferred the legal title, under the pleadings in this case. Up to that date there is no hint in the record that a higher price than that paid for plaintiff’s stock had been offered by any one. On the afternoon of that day, when Mr. Church informed the defendant and other directors of the Wiggins Ferry Company that a proposition had been made to buy its stock at $600 per share, the defendant replied that this proposition came too late; that the purchaser under the proposition theretofore made had already obtained a majority of the — 603 — stock of the Wiggins Ferry Company. He added, “I wish yon had had it sooner — I am sorry you did not have it sooner.” No name had been given of the proposed purchaser nor any written proposition when this colloquy took place. Later in the same day, not after five o’clock, Mr. Church obtained from the Mississippi Valley Trust Company a proposition to. pay $500 flat for the shares of the Wiggins Ferry Company and $100 additional, provided it obtained a majority of the stock. This was the earliest, of any specific, proposition shown to have been made in this case other than the proposition which had been accepted by defendant for his own shares of stock, and which he had also accepted for the curatrix of plaintiff. There is no .evidence in the record that the defendant had any knowledge of the specific terms contained in the written offer of the Mississippi Valley Trust Company until after the delivery of plaintiff’s shares to the Mercantile Trust Company. It was then too late for the defendant to retake the shares of stock and sell them to a competitor. The reason is, that the terms of purchase expressed in the first telegram sent by defendant to plaintiff’s curatrix, after their acceptance by her authority, became a binding contract on the part of the Mercantile Trust Company the moment it should accept the stock. This was distinctly ruled when the same contract was before this court in the case of Newman v. Trust Co., 189 Mo. l. c. 446, where, in analyzing the legal effect of the agreement created by the acceptance of the shareholders of the proposition to purchase expressed in said telegram, and by the subsequent acceptance of the shares by the Mercantile Trust Company, the court said: “The acceptance of the stock was obligatory upon the Trust Company if a majority of the stockholders on or before May 5,. 1902, agreed to sell their stock in like manner; otherwise, the acceptance was — 604 — optional -with the Trust Company until that date. This is the plain and obvious meaning of the contract. The Trust Company exercised its option by accepting the stock and paying the plaintiff the purchase price therefor on the 28th of April, 1902, in the manner set out in the statement. When this was done the sale was complete and the title to the stock passed to the Trust Company, in whose possession it then was.” So, in the case at bar, the instant the Mercantile Trust Company accepted the stock and agreed to pay therefor, the full title to the stock vested in it, and the right to receive the price vested in plaintiff’s curatrix. [Newman v. Trust Co., supra; Peycke Brothers v. Ahrens, 98 Mo. App. 456; R. S. 1909, sec. 2784.] In this status of affairs, it is clear that defendant was guilty of no breach of his contract or his duty as gratuitous agent, in that, on the Monday following, he handed over to the Mercantile Trust Company the shares of stock which were delivered to him by the St. Louis Trust Company, under an instruction given it so-to do by the curatrix of plaintiff, of date Saturday, April 26, 1902. The reason why defendant did not commit a-failure of duty in so doing is, that at the time in question all the conditions of the purchase by the Mercantile Trust Company had been fulfilled and the title to plaintiff’s shares of stock was in that company; and its custody in the St. Louis Union Trust Company was held for the benefit of the Mercantile Trust Company, to whom the curatrix had instructed it to be delivered. [Williams v. Evans, 39 Mo. 204; Harding v. Manard, 55 Mo. App. 364.] The defendant Scullin had thenceforth no legal right to prevent the delivery of said shares of stock in question by the custodian to the purchaser, and he would have assumed responsibility for the price offered if he had done so. We, therefore, hold that the defendant was guilty of no wrong in not attempting to rescind — 605 — the sale so made, and that he neither broke his agreement nor violated his duty as agent in the manner in which he acted. III. The learned counsel for appellant complains of the exclusion of testimony tending to show the making of the sales of the Wiggins Ferry Company stock on Sunday, the 27th, and Monday, the 28th, as evidence of the market value the stock had acquired at those dates. It would make no difference in the view we have taken of this case whether this evidence had been admitted or not. The defendant, even if he had full knowledge the stock had risen greatly in value, could not be charged with any delinquency as agent in this case, for the reason that the contract made by the curatrix was consummate, after her acceptance of its terms and notification to the custodian of the stock on the previous Saturday. It follows that the defendant had no power, and was charged with no duty to unmake her contract, or to commit a breach thereof, or to do any other act which would absolve her from a strict compliance with its terms. It is, therefore, immaterial that the trial court excluded the evidence fin question. Our conclusion is that the judgment in this case must be affirmed. Boy , C., concurs. PEE CURIAM. — The foregoing report of the commissioners is hereby adopted as the opinion of the court.