Wann v. Scullin

ROY, C. — This cause was begun in the circuit court of the city of St. Louis, May 15, 1902. There was a trial at the March term, 1904, on the second amended petition, resulting in a verdict for plaintiff for $50,000. Defendant’s motion for a new trial was sustained and plaintiff appealed. The action of the trial court in granting a new trial was sustained by this court in an opinion reported in 210 Mo. 429. The case was retried on June 2nd and 3d, 1909. The trial court sustained a demurrer to the evidence and entered its verdict for defendants, and the plaintiff, after her motion for new trial was overruled, perfected her appeal to this court. It would be vain to try to improve upon the exhaustive statement of the facts in the case made by Gantt, J., and his statement will be used as the basis of the statement for the present purposes, and only such additions will be made thereto as are required to show the difference in the facts as developed at the last trial. On May 27, 1908, a third amended petition was filed. This petition differs from that on the former trial in three points: first, it omits a number of allegations as to conspiracy and confidential relations which were in the second amended petition, and which counsel do not consider important; second, it alleges that had plaintiff known of Scullin’s interest in the Rock Island Company or the Mercantile Trust Company, and the 'agency of the latter for the Rock Island Company, she would not have sent her stock to Scullin; third, it states the legal effect of the telegram of April 24, 1902, from Scullin to plaintiff, and of the telegram of April 25,1902, — 636 — from her to him,, according to their legal effect as the pleader interpreted them, instead of setting them out in haec verba as in the former petition. The last trial occurred before the court sitting as a jury; and, by consent of counsel, all evidence given at the previous trial went in as though then and there adduced by the respective parties with the same objections and exceptions. In other words, the former bill of exceptions was made a part of the record on the last trial to the same extent as if the proceedings therein contained had occurred at the last trial. The appellant claims that new evidence was introduced at the last trial which should have the effect of changing the result; and it is deemed proper to state the appellant’s claims in that respect, and at the same time call attention to the record on the former appeal, so as to understand what if any effect the new evidence should have on the questions involved. A. Appellant claims that the contract between the Bock Island Company and the Trust Company by which the Trust Company undertook the purchase of the Wiggins Perry Stock for the Bock Island Company is new evidence. But an examination of the statement on the former appeal (210 Mo. l. c. 454) shows that this court fully considered that contract. B. Likewise the Mercantile Trust Company’s contract of purchase of Wiggins Perry Company stock made with various stockholders was before this court on the former hearing. [L. c. 454.] Appellant claims that there was new evidence tending to show that the Mercantile Trust Company failed to acquire a majority of the Wiggins Perry stock. On the former appeal, the petition alleged such failure, and while the answer contained a denial of all the facts not admitted, it did not allege that the Trust Company obtained a majority of the stock and plaintiff testified (210 Mo. l. c. 458) that she knew that the Trust Company did not have a majority of the stock, — 637 — and that everybody was talking about it. It will thus be seen that while there may be more evidence on that point in the present record than on the former trial, yet the question now, as then, is not as to the amount of evidence on that point, but whether any amount of evidence on that point affects the cause. C. Plaintiff offered in evidence d contract of sale by Joseph G. Holliday to James Campbell at $750 per share of 25 shares, theretofore signed by Holliday at $500 per share, the sale being upon indemnity against claim of Mercantile Trust Company and expressly concurred in by Mercantile Trust Company. The contract was excluded by the Court and plaintiff excepted. D. Plaintiff offered to prove by H. 'W. Cox the value of the real estate and improvements of the Wiggins Ferry Company in St. Louis and East St. Louis in-April, 1902, to be $7,185,316, which was excluded, and exceptions taken. E. The like offer was made as to the real estate in St. Louis, by C. C. Crone, and was excluded, and exceptions taken. F. Plaintiff offered to prove by Alonzo C. Church that the net earnings of the Wiggins Ferry Company for five years preceding April 24, 1902, were approximately each year $253,000 and over, which was excluded and exceptions taken, and Church testified that Scullin told him on April 24, 1902, that, while he could not tell him the name of the proposed purchaser of Wiggins Ferry Company, the effect of the sale to the purchaser would be to revolutionize the traffic across the river at St. Louis, and that it was a large system, a large railroad system. G. Breckenridge Jones testified that he bought Wiggins Ferry Company stock for some of the railroads which were a part of the proprietary lines of the Terminal Association, beginning April 26, 1902, and up to May 12, 1902, in all eight different purchases; amount — 638 — ing to 332 1-2 shares at from $1000 to $1500 per-share, and that the-Mississippi Valley Trust Company bought approximately 5800 shares, which was more than a majority. H. Mrs. Wann testified that when she sent her stock to Scullin, she did not know that the Rock Island Company was the prospective purchaser, and did not know what had taken place between Scullin and the Rock Island Company, and that she would not have sent the stock if she had known that Scullin had an agreement with the Rock Island to secure a majority or all of the stock for that company at $500 per share, or if she had known that he was interested in these-other affairs, and she testified that , the absence of an agreement on the part of Scullin with the Rock Island was a material inducement to- her to send her stock to him, and that if she had known of such an agreement, she would not have sent the stock to Scullin. The plaintiff makes three distinct, charges against, defendant Scullin, which will be taken up and discussed, not in their chronological order, but in the order most conducive to a clear and easy understanding of the case. I. The following charge is made- in the petition r That on April 29, 1902, plaintiff “received by mail from the Mercantile Trust Company a cheek for twenty-five-thousand dollars, and from said Scullin a telegram drawn by said Wade which pledged the honor of himself, the Mercantile Trust Company and its president. Wade that they then had a majority of all of the stock of the Wiggins Ferry Company contracted for. And plaintiff states that said allegation in said telegram was. not true, and was made with intent to deceive and defraud plaintiff.” . But by reference to' the court’s statement of the-case when it was first here, it will be seen on pages 446 and 447 that plaintiff made the statement in her peti — 639 — tion that on April 29th she received at Chicago from the Mercantile Trust Company its check for $25,000 sent by that company as payment, for the stock, and that on April 31st she went to defendants .Wade and the Mercantile Trust Company with said check and informed said company and said Wade that she was. dissatisfied with said sale, when said Wade informed her that he had plaintiff’s stock and intended to keep it,, and that plaintiff saw Scullin, who said he would see what could be done about it, but'on the next day said he had no time to talk about it; and said petition continues in the following words: “And plaintiff, finding that the Mercantile Trust Company was determined to keep her stock and that Wade and Scullin refused to talk to her about the alleged saje, returned with said check to Chicago, Illinois, and plaintiff has retained the said cheek and elected to sue the defendants for their fraud and deceit.” And plaintiff’s testimony on the. former trial (210 Mo. 459) shows that she knew while in St. Louis and while she still had said check in her possession that the Mercantile Trust Company did not have a majority of said stock and were paying others bigger prices, so. that if it be true that the failure of the Mercantile Trust Company to acquire a majority of the stock put it out of the power of Scullin under his agency to. deliver plaintiff’s stock, the plaintiff, with full knowledge, ratified the contract by retaining and cashing the check. The law does not permit a principal to accept the fruits of a bargain made by the agent, and then sue the agent for exceeding his authority in making said bargain. By ratifying the contract the principal ratifies and indorses the agent’s act in exceeding his authority and absolves the agent from any liability on account of such excess. Meehem in his work on Agency, section 171, says; “The general rule therefore is that by such ratification — 640 — the principal absolves the agent from all responsibility for loss or damage growing out of the unauthorized transaction.” It is said in Clark & Skyles on Agency, section 385: “Of course, if an agent departs from the instructions of his principal, the principal may ratify his act, either expressly or impliedly, and thus release him from liability,” and the same position is held by Tiffany on Agency, page 87. In Kirkpatrick v. Pease, 202 Mo. l. c. 490, it is said: “The ratification of an act, done by one assuming to be an agent, relates back, and is equivalent to a prior authority.” In Aetna Ins. Co. v. Sabine, 6 McLean (U. S. C. C.) 393, which was a suit against an agent for exceeding his authority as such, the court says: “If he be not authorized to act, the policy is not binding on the plaintiff, and a ratification of the policy by the company would relieve the defendant' from responsibility, and remove from the plaintiff all ground of complaint.” We are aware that this doctrine requires that, in order to discharge the agent by ratification of his act, the principal must be in possession of all the material facts. But in considering this question, we must not confuse the facts on the point of ratification with the facts on the question of deceit. In order to make the ratification binding on her as against the agent, it was only necessary for her to know the facts as to the value of the stock and as to whether the Trust Company had a majority of it. She was, by her own statement, in possession of all those facts, and is bound by her ratification, so that she has no cause of action against Seullin for exceeding his authority. II. Plaintiff charges defendant Seullin with representing to her in the telegram of April 29th that the Mercantile Trust Company had a majority of all the stock and with failing to inform her of the rise in the value of the stock which began late on April 26th and — 641 — reacted $1500 per stare on Sunday tte 27tt. Ttat telegram was sent, and tte rise in tte value of tte stock occurred after Scullin tad subscribed plaintiff’s stock to tte Mercantile Trust Company’s contract of purchase, and after Scullin tad delivered plaintiff’s stock to tte Trust Company under ttat contract. Yet before plaintiff took any further action, ste went to St. Louis, ste found ttat tte Trust Company tad ter stock and refused to give it up; ste found ttat it was worth $1500 per stare; ste found ttat tte Trust Company did not have a majority of tte stock, and with a full' knowledge of all these facts, according to -ter statement in tte former petition, ste chose to ratify tte sale and sue for fraud and deceit. Ste was not misled to ter injury either by tte statement ttat tte Mercantile Trust Company tad a majority of tte stock or by tte failure of Sculhn to inform ter of tte rise in value of tte stock. III. It is charged ttat defendant Scullin concealed from plaintiff tte fact ttat he was largely interested in tte Rock Island Railway Company and in tte Mercantile Trust Company, and concealed from ter tte fact ttat the Rock Island Company was tte probable purchaser of ter stock, and ttat tte Mercantile Trust Company was to receive a commission of two and one-half per cent for making tte purchase. Tte defendant testified ttat ste was ignorant of those facts and ttat tte absence of those facts constituted a material inducement to send ter stock to Scullin, and ttat ste would not have sent it to him if ste tad known those facts. Ttat testimony seems to have been furnished by tte plaintiff on account of tte following.language in tte former opinion of this court (l. c. 487):. “In addition to what has already been said, we think this instruction is also fatally defective for tte reason ttat it did not require tte jury, to find that tte failure of Scullin to disclose his ownership of stock in tte — 642 — Rock Island Company and that said company, was the intending purchaser, were material inducements to the plaintiff’s action in sending her stock to defendant Scullin in response to his telegram of April 24th, nor that she relied upon the non-existence of such facts and would not have sent her stock had she known the facts.” We take it for granted that the above testimony was given conscientiously and in good faith; but, with due deference, we must say that her opinion as' to what she would not have done under circumstances which never occurred is worth no more than the. opinion of other persons on that subject. When she says that the failure of Scullin to disclose certain facts to her was a material inducement to her to do what she did, we must decline to yield our judgment to hers on the question as to what she would have done. If plaintiff had furnished evidence of some material fact which would have constituted a reason for the plaintiff to act otherwise than as she did, it might have changed the complexion of the case, but she has not done so. It still remains a fact that the only possible reason that would have caused her to act otherwise than as she did was the rise in the price of the stock, and she could not know of that because that rise did not occur until afterward; and when it did occur was probably almost as much of a surprise to the defendants as to the plaintiff. There was another proposition in the opinion of this court on page 488, which there has been no attempt to satisfy. It is as follows: “The transactions involved in this case were the same as those which were before this court in the case of Newman v. Mercantile Trust Co., 189 Mo. 423. And this court in that case held, after a car.eful perusal and consideration of the evidence that was rejected in that case, being practically the same as that in this case, that there was no evidence tending to prove the perpetration or even the contemplation of any fraud on the plaintiff or any other person. . On the contrary, the evidence abundantly establishes that — 643 — the defendants Scullin and Wade not only were not moved by any fraudulent purpose in advising plaintiff to sell her stock for $500 per share, but were actuated by a desire to deal justly and fairly, not only with the plaintiff, but with every stockholder of the Wiggins Ferry Company, in endeavoring to sell said stock to the Rock Island Company,” As was said by Bond, C., in the ease of Clubb v. Scullin, ante, p. 585, growing out of a similar state of facts, recently decided by this court: “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 liabilities 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..” As no case has been made against the defendant Scullin, it follows, under all the facts, that none has been shown against the other defendants, and the judgment is affirmed. Brown, G., concurs in result. PER CURIAM. — The foregoing report of the commissioners is hereby adopted as the opinion of the court.