Stewart v. Brinson-Waggoner Grain Co.

REYNOLDS, P. J. This is an action by appellants, trustees of the Missouri Valley Grain & Export Company, hereafter referred to as the Export Company. The amended petition upon which the case was tried contains six counts, the first for $724.99, the second for $90.63, both of these alleged to have been balances due by defendant to the Export Company in September, 1904, upon a cash grain account and an option account of the company, carried upon the books of respondent, the accounts being closed by these balances being credited to an account at that time standing on the books of respondent company in the name of one S. M. Bird. The third, fourth and fifth counts are to recover $1500, $1250 and $1000 respectively, paid during the month of July, 1904. to respondent company by the Export Company as margins on trades in grain — 480 — for future delivery, credited at the time ou the books of respondent company in the name of Bird. The sixth count is based on checks which represent the amounts mentioned in the third, fourth and fifth counts, but avers that they were given as margins to support a sale of wheat for delivery in July, made by the Export Company with defendant, that is, put up as margins by the Export Company; that on the 30th of July the Export Company delivered to respondent all the wheat called for in that sale, and the margins, aggregating $3750, became released. Averring that the plaintiffs had demanded of respondent the return of these margins which respondent refused, judgment is prayed on this count for $3750, with interest. The answer was a general denial. The cause was tried by the court without a jury. Probably the best way of giving an intelligent account of the facts in the case is to incorporate here the finding of facts and conclusions of law made by the learned trial judge, he having been requested by respondent, defendant below, to make them. “Prom the testimony in the above case I find that S. M. Bird was the vice-president and sole general manager of the Missouri Valley Crain & Export Company, hereinafter called The Export Company, engaged in the general grain business; and that as such general manager he carried on the business of the Export Company on the floor of the Merchants’ Exchange in the city of St. Louis; that all of his dealings in future purchases of grain were in his own name, but were the dealings and contracts of the Export Company; that as vice-president and sole general manager of the Export Company in St. Louis he had authority to do and transact any business of the company that it was authorized to do under its charter; that the Export Company knew that Bird, its general manager, was conducting an account with the defendant company in his own name, but for the benefit of said company. — 481 — ‘.‘"Whether the Export Company knew of all the deals which Bird made with the defendant company, is, therefore, it seems to me, a fact not material in this case. It could easily have informed itself. As a matter of fact, however, there seems never to have been held a meeting of any kind of the Board of Directors of the Export Company, and no one ever seems to have interfered with Bird in his complete management and control of the Export Company’s business in St. Louis. No question was ever made by any other officer or director of the company as to Bird’s transactions. Bird exercised unlimited authority, so far as such authority can be exercised by a general manager and executive officer of a corporation; he seems to have done whatever it pleased him to do, so far as the St. Louis end of the business was concerned. The company, itself, never complained of Bird’s conduct or of any of his transactions with the defendant company. The defendant company was at no time advised of any limitation of Bird’s authority. The defendant had the right to presume that as the sole general manager of the Export Company’s business in St. Louis that his acts were within his authority and that the company knew what its general manager was doing. In fact, under all the circumstances in this case, it is almost impossible to distinguish between Bird as such sole general manager and the Export Company itself. If Bird failed to report his transactions, or if he appropriated money of the company to his own use, the defendant company cannot be held, inasmuch as at no time did the Export Company advise the defendant company of any limitation upon Bird’s authority. I know of no law which attaches any limitation to a sole executive officer of a corporation acting within the charter powers of the corporation. “I am thoroughly satisfied that the company knew that Bird was dealing with the defendant company in — 482 — futures and options on behalf of the company, and knew that such deals were made in Bird’s individual name; and further, that the company knew that the account was so carried in defendant company’s books in Bird’s name. It is impossible from the evidence in this case, which shows clearly the manner in which all the business was done, to escape the conviction that the Export Company knew what Bird was doing and knew that the account was carried in his name. In fact, as stated above, it is almost impossible to disassociate the Export Company from Bird so far as the St. Louis branch of the business is concerned. ' Bird was in fact the whole company in St. Louis aside from a legal fiction. “The comment which counsel makes of such dealings would be more meritorious if the dealings of the corporation were such as could be denominated businesslike, but it does not lie -in the mouth of such a large corporation to question' such dealings as the sole manager of its business throughout its short and troubled career made. There was no one here to question Bird’s actions, and no one ever did question them. The company never did complain, and is not now complaining. The plaintiffs here took by assignment what Bird left, and nothing more. He left nothing. It would be a great hardship, indeed, if, under all the circumstances, the defendant company could be held liable because of Bird’s conduct. Defendant company knew (and that was all it could possibly know) that Bird was the sole manager, in full and absolute control of the Export Company’s business in St. Louis. I find, therefore,. that the Bird account on the books of the defendant company was the Export Company’s, notwithstanding there are some ‘unlikely items’ in it. These ‘unlikely items’ may reflect on Bird, but not on defendant. “I have been requested by the counsel for the defendant to make a finding, of facts in this case, but I — 483 — deem the foregoing sufficient to justify the conclusion of law, which is that the plaintiffs take nothing by their suit. The petition is accordingly dismissed.” Plaintiffs duly excepted to these findings and to the conclusions of law and filed their motion'for new trial as well as one in arrest, both of which were overruled. In overruling the motion for a new trial the court handed down a written memorandum in which he > stated, in substance, that he had listened carefully at the trial to all the evidence and that his after-reading of the testimony had confirmed him in his belief that the Export Company knew all the while that Bird was dealing in futures; that while the company may not have received the benefit at all times of such dealings, it had selected its own representative; that he did not attach much importance to what Mr. Bird or the representative of the respondent or the secretary of the Export Company now say regarding the nature and character of Bird’s dealings with the defendant company. “It is inconceivable, almost,” says the court, “that Bird, during the whole period of the existence of the company in St. Louis, should have been conducting dealings in futures, and the company which he represented, and of which he was the sole representative, knew nothing. In matters of this kind we must defer, at least, somewhat to human experience and not take as gospel truth what may be said by witnesses long after the transactions in question were had.” Setting out what the evidence showed as to the manner in which Bird had managed the business for the Export Company at St. Louis and the facts which satisfied him that the Export Company must have been aware of what he was doing there, the court concludes that the testimony in the case amply sustains the conclusion arrived at by him on it and he overruled the motion for new trial. Saving exception to the overruling of this motion as also the overruling of the — 484 — motion in arrest of judgment, plaintiffs duly perfected appeal to this court. During the progress of the trial and before the court made its findings of fact and conclusions of law, and at the close of the testimony in the case, plaintiffs asked six declarations of law, taking up each of the several counts of their petition and asking the court to declare as a matter of law that under the pleadings and evidence the plaintiffs are entitled to recover on each of these counts. "Without passing on these requests, the court took them under advisement along with the request of defendant for a special finding, and in point of fact never marked them as. “given” or “refused.” Defendant had also requested the court at the conclusion of the evidence to require plaintiffs to elect as to whether they would stand on the third, fourth and fifth counts or the sixth count of the petition, claiming that the sixth count and these other three counts were in irreconcilable conflict with each other. This the court overruled. In addition to the declarations of law before referred to, plaintiffs asked nine declarations. The court gave the first, second, fourth and ninth; re-The court gave the first, second, fourth and ninth; refused the fifth, sixth, seventh and eighth, but did not mark the third as either “given” or “refused.” This third declaration asked by plaintiffs and refused is to the effect that the court declares the law to be that even though it be admitted in the evidence that Bird was the vice-president of the Export Company and manager of its St. Louis branch, yet as such vice-president he had no authority to order credits due the Export Company by defendant to be credited to his individual account with the defendant, and that before such debit of the Export Company account may be regarded as valid, it must be shown that Bird had received some authority from the Export Company other — 485 — than its general authority as vice-president or manager, and the burthen of showing such authority is upon defendant. In addition to asking for a written finding of facts and conclusions of law, defendant asked five declarations. The court refused the first, fourth and fifth, gave the third and refused the second, writing on the second as a ground for its refusal, because the court found as a fact “that Bird’s dealings were the company’s dealings.” Appellants are objecting and excepting to this action of the court in writing this on this declaration of respondent; whether the objection is to the matter, or to writing it on the declaration, is not very clear. The third declaration which the court gave at the instance of defendant, in substance, declares the law to be, that if at the times mentioned in plaintiffs’ petition, Bird was the vice-president and general manager of the Export Company and was its agent and representative on the floor of the Merchants’ Exchange of St. Louis, then he had full power and authority as such officer and agent and representative to buy and sell for it and on its account, grain for future delivery and to settle all deals in grain for future delivery, and that the Export Company is bound by any settlement of the same which he made in good faith. Here the learned counsel for appellants file twenty assignments of error. "We do not deem it necessary to set them out at length as they will doubtless appear in the report of those- counsels’ briefs. We shall in our opinion notice some of them specifically, as possibly important in other cases, but content ourselves with saying that we do not consider any of them tenable; most of them are exceedingly technical and do not touch the merits. Examining the testimony in the case in the light of the assignment of error, that there is no testimony to support the finding of the court, we have concluded — 486 — that this assignment cannot be sustained. On the contrary, we find ample testimony in the record to warrant the court in arriving- at the conclusion he did on the facts in the case. The assignment as to the weight to be given to that testimony, is untenable, for that is exclusively within the control of the trial court, trying this case as an action at law. Furthermore this case, an action at law, comes to ns with a finding of facts by the court, and in such a case “a finding of fact ... is in the nature of a special verdict which we may not interfere with on appeal if there he substantial evidence to support it.” [Walther v. Null, 233 Mo. 104, l. c. 110, 134 S. W. 993, and cases there cited.] As to the assignments of error in the admission and exclusion of testimony, we find no error prejudicial to plaintiffs. Counsel for plaintiffs attack the action of the court in giving and refusing declarations of law and in failing to find separately as to the facts, and on each count of the petition, and also in failing to separate its finding of facts from its conclusions of law. Section 1972 of our present revision, provides that when one of the parties to the cause requests the court to make a finding of fact, “the court shall state in writing the conclusions of facts found separately from the conclusions of law. ’ ’ It has been held, under this section, that when the court is sitting as a jury and in an action at law, he may be asked to give declarations of law or to make a finding of facts with his conclusions of the law, but he cannot he required to do both. [Kostuba v. Miller, 137 Mo. 161, l. c. 173, 38 S. W. 946; Moss Tie Co. v. Kreilich, 80 Mo. App. 304.] Here counsel for each of the parties, as well as the court, saw fit to disregard this and counsel asked and the court gave various declarations of law, also refusing several asked. We have followed in this course, although it is a wrong one, holding counsel to their — 487 — own lines. Examining both the finding of facts and the conclusions of law arrived at by the court, and considering them along with the declarations of law given or refused, we are able to determine exactly the theory of law upon which the learned trial court tried the case, and the facts upon which, under that theory, he reached his conclusion, and that is the point had in view by the statute. [See Moss Tie Co. v. Kreilich, supra, l. c. 307.] It is also to be remembered that it was defendant and not plaintiffs who asked for a finding of facts. It is therefore doubtful whether plaintiffs can now assign error to any omissions, inasmuch as they themselves insisted on declarations of law being passed upon and the court yielded to their insistence. [See Settle v. Farmers’ & Laborers’ Co-operative Ins. Assn. of Monroe County, 150 Mo. App. 520, l. c. 529, 131 S. W. 136.] This also disposes of the point that the court failed to write the word “given” or “refused” on the declarations submitted. The trial was before the court. His ultimate action clearly shows what view he took of the several declarations asked. "We have no difficulty in understanding his conclusions both on the law and the facts and see no reason to disturb either. Finding against plaintiffs on the whole case, a separate finding and judgment on each count of the petition was wholly unnecessary. We find no error .in the action of the court on the declarations of law asked. Especially is this true as to those marked “third,” one asked by plaintiffs, one by defendant. The one is the antithesis of the other; properly giving that asked by defendant, the court was bound to refuse that asked by plaintiffs. The issues in the case are really simple, turning on the fact as to whether one S. M. Bird in his dealings with respondent was acting for himself or as representative of and on account of the Export Company. As found by the learned trial court, that company — 488 — never in any manner repudiated Ms transactions or denied Ms authority, but acted throughout as if Bird was its factotum, employed to manage and do all its business at St. Louis. The attempted repudiation of him and his acts is by these plaintiffs, who, as trustees holding title to all the assets of the Export Company, under an agreement to which the Harroun Elevator Company, the Export Company and others were parties, now claim the amounts sued for as of those assets. The trial court found against tMs claim and, as we think, correctly. Its judgment is affirmed. Nortoni and Caulfield, JJ., concur.