Whiting v. Enterprise Land & Sheep Co.

OPINION. BOND, J. (After stating the facts as above.) — No., question can exist as to the right to sue in equity for. the specific performance to deliver shares of stock,, whenever it is shown that the shares contracted for, have no market value, or are difficult to obtain else-, where, or there is some reasonable cause for the delivery of the particular shares arising out of the relation they bear to the control of the corporation. In all, such cases the action for damages at law is wholly, inadequate and complete relief can only be had in. equity., [Hagan v. Bank, 182 Mo. l. c. 335; O’Neill v. Webb, 78 Mo. App. 1; Wood v. Telephone Co., 223 Mo. l. c. 550; Baumhoff v. Railroad, 205 Mo. l. c. 262; Montgomery v. Hundley, 205 Mo. l. c. 153; Dennison, v. Keasby, 200 Mo. 408.] [381] Nor can there he any doubt that a court of equity in case of wrongful refusal of the officers of the private corporation will compel them to issue to a buyer, in lien of shares bought by him from a shareholder, other shares in his own name. [Senn v. Mercantile Company, 115 Mo. App. 685, and cases cited.] It is clear therefore that if the allegations of plaintiff’s petition brought it within the scope of these principles, it stated a cause of action for relief in equity. A careful consideration of the averments of the petition which have been summarized in the statement shows that it makes no complaint of the failure to deliver the number of shares of stock for which, plaintiff contracted. On that point the petition uses the following language: “Third: Plaintiff further states that after the execution of said contract, and in compliance with same, the defendant I. C. Van Noy, did deliver to the plaintiff 57,700 shares of the capital stock of said defendant Enterprise Land & Sheep Company; and said stock is now in the possession and under the control of the plaintiff, and plaintiff is now the owner and holder of the same. ’ ’ This eliminates from the petition any ground of equitable relief based on a refusal to deliver .the shares, and as to that left the plaintiff only entitled in any event to a formal transfer on the books of the defendant showing him to be the owner of the shares. Neither should the decree of the learned trial court have adjudged under the present petition that the defendant I. C. Van Noy should convey the lands described therein to the defendant corporation. There are no allegations in the present petition which makes that his duty. Whether I. C. Van Noy by virtue of his acts and doing in the acquisition of title to said lands has fraudulently secured to himself the entire assets of the corporation while bearing the fiduciary relation to it and in charge of its affairs as its president is [382] not set forth by any allegation or charges contained in the pleadings in this case, nor was any amendatory or supplemental petition filed after the adduction of evidence touching the conduct or methods employed by I. C. Van Noy in the obtention of title to the lands in question, so as to make such evidence the basis of the decree rendered. The rule in equity is the same as at law, that no relief or redress can transcend the causes of action stated in the pleadings. In equity suits any relief consistent with the pleadings is obtainable upon sufficient proof when there is a prayer for general relief. [Phillips v. Jackson, 240 Mo. l. c. 336, and cases cited; McLure v. Bank, 252 Mo. l. c. 520.] But beyond that the court is not permitted to go. [Wilson v. Wilson, 255 Mo. l. c. 537-8.] If unpleaded grounds of equitable relief were disclosed during the progress of the trial, an application for an amendatory or supplemental petition would have been timely. [Newham v. Kenton, 79 Mo. l. c. 387.] In the case at bar no such request was made and no such action taken. It is evident that the decree of the chancellor in so far as it directs the conveyance by I. C. Yan Noy of the lands in controversy to the defendant corporation is based wholly on matters outside the scope of any allegations stated in plaintiff’s petition. It must therefore be reversed and the cause remanded to be proceeded with in a manner not inconsistent with this opinion. It is so ordered. All concur.