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by mail, addressed to Festus J. Wade, pres- more than $500 a share for the stock?' and ident of the Mercantile Trust Company, or Mr. Wade said: 'No, I do not deny that we to the Mercantile Trust Company, I don't have paid more. It will have to go into court know which; but think it was Festus J. anyhow, He did not state how much more Wade, president of the Mercantile Trust Co. than $500 he had paid. Nothing was said It was stamped with a two-cent stamp, and as to whether Mr. Wade had paid any more deposited in the government mail box.” The than $500 a share to those who had signed letter was dated April 30, 1902, written on L. the proposal. It was just a general stateE. Newman's letter head, marked "Exhibit ment that he had paid it." No. 5," and is as follows:
On cross-examination witness said: "Wade "St. Louis, April 30, 1902. refused to take the cashier's check tendered "Festus J. Wade, Esq., President Mercan- | him, and I still have the $50,000 in my postile Trust Co., City-Dear Sir: Allow me to session." Defendant's counsel admitted that acknowledge herewith receipt of your treas- the stock was purchased for the Rock Island urer's check for the sum of fifty thousand Ry. Co. Dr. L. E. Newman was recalled, dollars ($50,000) on account of sale of one and questioned by the court, and stated that hundred shares Wiggins Ferry Company's after he had his interview with Mr. Wade, stock, according to agreement of April 24, he deposited the check. He did not collect 1902, and I accept it only on condition that you the money. He deposited it, and waited until have kept and will keep said agreement in all the time for the option to expire. “It went respects, and I desire to formally notify you through the clearing house, and was collected that I waive no rights which I may have in in the regular course, and went to my credit the matter.
as trustee." “Yours truly,
The plaintiff was then permitted to intro"L. E. Newman, Trustee,
duce the following written agreement in evi"Est. Soc. Newman." dence over the objection of the defendants: Witness resumes: "Nothing further was “An agreement made and entered into this done between the date of that letter and May 22nd day of April, A. D. 1902, by and between 5, 1902, when accompanied by my attorney, the Chicago, Rock Island and Pacific Ry. Gen. Noble, I went to the Mercantile Trust Co. (hereinafter called the Rock Island ComCo. Festus J. Wade, James L. Blair, John pany) and the Mercantile Trust Company of W. Noble, and myself were present. Gen. the City of St. Louis, Missouri, (hereinafter Noble said that he came there for the pur- called the Trust Company), Witnesseth: pose of asking back, for his client, Dr. New- “The Trust Company for a valuable considman, the Wiggins Ferry stock, and he said eration, hereby undertakes as agent to buy he wanted to make a tender of the money to for the Rock Island Company a majority or Mr. Wade, and demanded his stock. Wade all of the shares of the capital stock of the looked at the cashier's check wbich Gen. Wiggins Ferry Company, an Illinois corporaNoble handed him, and said he would not be tion, on the terms and subject to the condi as mean as some people, but that he would tions following: consider that a formal and proper tender; "Said shares shall be purchased at the but he said, 'I will not return the stock.' It price of five hundred dollars ($500) per share, was a cashier's check of the American Ex- it being understood that the entire capital change Bank for $50,000. Gen. Noble said stock of said Wiggins Ferry Company conto Mr. Wade, as the 5th of May ran until sists of ten thousand (10,000) shares of the midnight, and it was then noon, he wanted par value of one hundred dollars ($100) each. to know whether he would consider it was Payment for said shares shall be made in necessary to come back the next day, when cash on the surrender of the certificates foi the option had expired, and Mr. Wade said, so many of said shares (not less than a ma'Gen. Noble, you can come to-morrow, and jority) as shall be deposited with the Trust you can come the next day, and I shall al- Company on or before May 5, 1902, properly ways give you the same answer.' Gen. Noble endorsed in blank for assignment and transsaid, “Will it be necessary for me to return,' fer on the books of the company. The Rock and he said: 'No, Gen. Noble, it will not Island Company will provide funds for such be necessary for you to return. My answer payment on said May 5th, 1902, on demand of will be the same.' Gen. Noble asked if it the Trust Company. It being understood, was acknowledged by Mr. Wade that the Rock however, that no such payment shall be made Island was the principal in the purchase of by the Rock Island Company, nor shall said the Wiggins Ferry Co., and Mr. Wade and company be liable to purchase or take any of Mr. Blair, if I remember rightly, stated it said shares unless certificates for at least was. Mr. Blair said he was representing a majority of the entire capital stock of said Mr. Wade. Gen. Noble asked Mr. Blair as to Wiggins Ferry Company shall then be on whom the Mercantile Trust Co., Mr. Wade, deposit with said Trust Company ready for and himself were representing, and he said delivery as aforesaid. The Rock Island Comthey were representing the Rock Island Ry. pany agrees to pay to the Trust Company at Co. Gen. Noble stated to Mr. Wade, Mr. the time of payment for said shares so purWade, do you deny that you are or have paid chased, and the delivery of the certificates therefor, a commission of two and one-half prove the perpetration, or even the contemper cent (213%) on the total purchase then plation, of any fraud on the plaintiff, or, for paid therefor.
that matter, upon any person. All this evi"The Chicago, Rock Island & Pacific Rail- dence tended to prove that could in any way road Company,
affect the plaintiff was that the defendant "By W. B. Leeds, President. railway company, being desirous of obtain“Mercantile Trust Company,
ing a majority of the stock of the ferry com“By Festus J. Wade, President."
pany, undertook to accomplish that purpose The plaintiff then introduced Gen. Noble, by the means set out in the written instrubo testified as a witness in his behalf, and ments contained in the foregoing statement, bose evidence corroborated that of the plain- and that, after the offer of $500 per share * as to the tender and demand for a return by the trust company became noised abroad, of the stock on the 5th of May, 1902. After the price of the stock suddenly rose, and that which plaintiff offered in evidence the deposi- the trust company before the 5th of May ties of Daniel G. Reed, Wm. H. Moore, and did in fact purchase some of the stock at Rodart Mather, wbich, after a colloquy be- such advanced price. The fact that such tween the court and counsel, were rejected. advanced price was so paid by the trust
Bisides these depositions, some other depo- company was proven, and, as a conceded sitcos of like character and other evidence fact, will be treated for all it is worth in Fas offered and rejected, which, in the view considering the real issues in the case; but me take of this case, need not be particular- that fact was and could be no fraud upon is doticed; after which the plaintiff was per- the plaintiff. There is in fact no question mitted to introduce in evidence the charters of fraud in the case. The only real quesof the Wiggins Ferry Company and the de- tions in the case arise upon the written inferdant railway company.
struments set out in the statement, and the At the close of the plaintiff's evidence the acts of the parties thereunder. The court coort instructed the jury that under the committed no error in the rejection of ofpleadings and evidence in the case the plain- fered evidence, and we will now proceed to siff is not entitled to recover, and their ver- the consideration of the real questions in dict sbould be for the defendants on both the case. counts of the petition. Thereupon the plain- 2. The plaintiff's action is essentially one tiff took a nonsuit with leave, and there- of trover. Such an action may be maintainafter filed his motion in due time to set the ed for shares of stock in a corporation. save aside, which having been overruled, he "Stock certificates" and "shares of stock" appealed
may be treated as synonymous, as they were 1 The first contention of counsel for plain-evidently so regarded by the parties to this ift is that: "Under the pleadings all the evi- transaction. In order to maintain his action, dence offered by the plaintiff and rejected the plaintiff must have been the owner of by the court below was admissible, and that the shares of stock in controversy, and enthe court erred in its rulings thereon. The titled to their possession at the time of the petition was broad enough to let in all the alleged conversion. It is conceded that on facts tending to prove fraud at any step of the 5th of May, 1902, he tendered to the the transaction and enable the jury to pass trust company the sum of $50,000, and deapon the whole case.” It is well-settled law manded the stock, and that his demand was
this state that “a mere charge of fraud, refused. Demand and refusal are evidence vthout specification of the act or acts which of conversion. Hence if on that day he constitute the alleged fraud, amounts to was the owner of the stock, and entitled to Dothing in pleading." Nagel v. Lindell Ry. the possession thereof, his case is made out; Com 167 Mo. 89, 66 S. W. 1090, and cases otherwise not. Prior to April 24, 1902, the dited. In the first count of the petition the plaintiff was the owner and in possession of only acts specified as fraudulent are the pre- the stock. On that day he entered into the sentation to the plaintiff of the contract of agreement of that date with the trust comApril 24, 1902, and the sending to him by pany, in pursuance of which, on the 26th Eail of the letter inclosing the check for day of April, 1902, the stock was delivered $1000 in payment for his stock, upon the to the trust company, and the plaintiff acregresentations contained in which it is al- cepted the receipt therefor of that date. leged that he relied. These instruments By this means the title to the stock and speak for themselves, and of them no fraud the possession thereof became separated. 13 predicable. But it seems to be contended The title remained in the plaintiff and the hat under the second count in the petition possession in the trust company, each holdthe rejected evidence was admissible, the ing subject to the contract. Now, the crubroad claim being that under that count cial question is, “What was that contract?” any facts tending to prove fraud at any It was in writing, and is evidenced by the step in the transaction” are admissible. It proposition of the trust company, the acs sufficient to say, in answer to this conten- ceptance of that proposition by the plaintiff, au, that after a careful perusal and con- and the receipt for the stock, set out in the & Beration of all the rejected evidence we statement. The proposition of the trust fail to find therein any evidence tending to company of April 24, 1902, was, in substance, City employé. On Saturday morning, Sep- It appears from the evidence that the tember 12, 1903, about 7 o'clock, or a little Giesecke Company have all the cases in which after, Rector drove up to the depot, and shoes are manufactured for them marked there met Robert Morcom, one of the dellp- with what is known as the "Key Brand.” ery clerks of the Big Four. On that morn- Rector testified that prior to about the ing there was what was known as a "rush 12th day of August, 1903, he was employed order" in the Big Four Depot for the de- by the Mound City Transfer Company of St. livery of a box of brass faucets for the Louis; that from about that date to SepBlanke Company, a concern for which the tember 12, 1903, he was unemployed; that Mound City Transfer Company also did the he had known Sam Mintz for perhaps a hauling, and when Rector appeared Morcom month before September 12th, and that on proceeded to make up a load of freight for September 11, 1903, he met Mintz in a saloon him to be hauled by the Mound City Trans- in St. Louis by prearrangement, and that fer Company. Morcom produced the deliv- Mintz hired him to drive a team for him ery tickets for the Blanke order and for the the next day, also promising future employGiesecke order, and handed them to Cassen, ment; that early on the morning of Septema "picker,” and told him to give the goods ber 12, 1903, and about 5 a, m., he went to called for by the tickets. As to the custom Mintz's house in St. Louis, and ntz, by of delivery Morcom testified that when a agreement, had a team brought around hitchman came in, whether an employé of the ed to a stake wagon, and told Rector to go Mound City Transfer Company or any other, to the Big Four Depot and get a load of and asked for a load, he would turn the shoes, saying to him, “Just call for a load sheets over to his men, and instruct them of shoes, and you will get them." Mintz achow to load the wagon. On this morning, companied Rector a part of the way on when Rector called for one particular ship- foot, toward the bridge, and then turned the ment of shoes, he had a rush order from team over to him, and Rector drove over the Blanke for one box of brass faucets, and bridge; Mintz having told him to get the told him he would have to take those goods; shoes, and that a young fellow who had then he would del him the boes.
brought the team would tell Rector where to W. 0. Life, a witness for the state, testi- deliver the shoes. Mintz again met Rector fied that on September 12, 1903, he worked at the end of the bridge, bought him several for the Big Four Company, and was a part drinks, again told him what to call for at the ner with Morcom, both delivery clerks at Big Four Depot, and told him about the the same window, and that Rector came young fellow, and Rector proceeded to the to the window and said a load of shoes; and depot with his team and wagon. The details that when he told him he could not get the of what happened at the depot, as shown by load of shoes without taking the box of the evidence of the Big Four employés, is brass, he said he would not take the box of corroborated by Rector, who testified as folbrass; had not time enough to go after that. lows as to what happened after the team He again told him he would have to take the was turned over to him by Mintz and he startbox of brass or he would not get the shoes, ed from St. Louis for the Big Four Depot in to which Rector replied: "I have got to East St. Louis: “Q. What occurred then? hurry. I have got to reach a car of the A. He told me he would meet me the other Missouri Pacific.” Life then told him that side of the river. I didn't see Sam Mintz it didn't make any difference what he had there, so I went on across. There was an to do; he would have to take the box of old fellow gets on the wagon with me. I faucets or he would not get the shoes. Life don't know his name. He asked me to ride further testified that the Mound City Com- across. I told him 'All right.' He rode pany did the hauling for the Giesecke Com- across the bridge to the stairs on the far side, pany, and that he knew Rector as an em- the old fellow did; and he gets off and ployé of said transfer company.
walks down the stairs. He works at the Big The testimony of other employés of the Big Four, I think. After I passed the stairs, Four Company shows that they knew Rec- Sam Mintz got over. He overhauled the tor was a driver for the Mound City Com- wagon. Rode about half way down the enpany, and that the box of brass for Blanke trance to the bridge. Q. Was that the first and the shoes for Giesecke were delivered to time you saw him? A. Since I left the saRector in the regular course of business; that loon, yes, sir. So Sam gets on there, and he the steps taken by them were such as are says, 'You drive down to the Big Four, taken in the usual course of business when back in to door No. 8. and ask for a load dealing with the delivery of freight; that it of shoes,' and he says, 'You will get them.' I was the custom of the transfer company to
told him 'All right.' As he got off the wagon, give the number of the wagon hauling the he said, 'Stop down at the corner, and sweep goods; that Rector gave the number of his the coal dust off. There was some coal on wagon as 105. That number was given by the wagon. I drove down there, went to the Rector, who accounted for his wagon not saloon, got a broom, and by that time Sam being the regular wagon of the Mound City was there too. Sam went in the saloon beCompany by stating that his regular wagon fore we swept the wagon. Had a couple of had broken down.
drinks. I went out and swept the wagon
ott, came back, and had a couple more. I $156 worth, or what was sold to one Volker as feeling pretty good then. So I drove for that amount, were packed up and sent to down to door No. 8, backed in, met the fore- this man, said to be from Texas. Defendant man or delivering clerk. I said, 'I am after was present when the goods were repacked a load of shoes.' He said, 'Where is your and during the time the sale was being made vagon?" I said, 'No. 8 door.' He said, to the merchant from Texas. That on MonTbey are just opposite here.' I said, 'All day seven dry goods boxes of these shoes were right.' He said, "There is a box of faucets to loaded on an express wagon and taken to go over with that load.' I said, 'I ain't sent 7616 South Broadway, to the home of a man for Do faucets.' He said, 'You have got to by the name of Isaac Seifer, and put in a take them; that settles it.' So we com- shed in the rear of his house, where they menced loading shoes, and he brought the remained until Friday of that week, when faucets out, and says, 'Take this box and load they were taken away by the police to the it first.' I said, 'I will not do it.' He said, Four Courts. 'Too bave got to take that now; that settles The testimony of the police officers shows it' So he put these men to loading my wag- that two or three of the original cases were 01. Three truckers, three pickers, piled the found in Zellinger's place; that in his basesboes out faster than I could load up. Final- ment or cellar were found broken boxes ly I got loaded up. He wanted me to sign with the "Key Brand,” showing that they two tickets-three tickets, rather-and Mintz were boxes in which Giesecke shoes had been told me on the bridge to sign the name 'Reed," shipped; and Zellinger testified that the Dot to sign my name for the shoes; but I shoes produced in court were like the ones supposed it to be all right. So I signed that delivered to him by the young man, and which box of faucets in the name of Reed. Signed Mintz told him to take. the wbole business. Q. Was there anything Zellinger testified that Mintz told him to said about the wagon? A. Yes, they asked make the sale to Volker for $156, and that what was the number of my wagon. They on Monday night Mintz asked Zellinger to always do that. That is customary. I told give him what money he had, and that he thern 105.' Sam told me that was his num. gave Mintz $90. ber; the wagon goes by that number; that On or about Thursday of that week the arthe other wagon was broken down." After rests were made, and the shoes recovered. driving from the Big Four Depot, Rector and The identification of the shoes was complete, the young man who Mintz told him would not only from the testimony of the witnesste his guide, crossed the ferry with him, and es, but from the invoice sent by the factory finally they drove to Zellinger's place at 2620 which made them, when compared with the Franklin avenue, where all of the shoes were shoes themselves. deposited. Zellinger protested about taking At the close of the evidence for the state all the 146 cases until Mintz told him they the defendant asked an instruction in the nawould take them away on Monday. Zellinger ture of a demurrer, which the court refused. testified that the young man whose name he Thereupon the defendant rested his case, and does not know told him to walk down the the state dismissed as to the second count of street and see Mintz, which he did, and then the information. At the close of all the eviit was arranged that Zellinger take all the dence the court instructed the jury, fully sboes. Rector testified that after the shoes covering every feature of the case to which and the brass faucets were unloaded the the testimony was applicable. The case was team and wagon were turned over to the submitted to the jury, and they returned a young man, and that he met Mintz, who gave verdict of guilty, assessing his punishment at bir $25 for his day's work; that subsequent- imprisonment in the penitentiary for a term ty Mintz gave him other money, trying to get of three years. Sentence and judgment was Rector to agree to run away; that Mintz kept entered in accordance with the verdict, from promising to give him enough money so he which judgment the defendant prosecuted this could leave the country, but he failed to pro- appeal, and the cause is now before us for doce the agreed amount, and finally Rector review. as arrested on or about the 17th of Septem
Thos. B. Harvey, for appellant. H. S. ber. The testimony shows that one Zeidell was
Hadley, Atty. Gen., and Rush C. Lake, Asst.
Atty. Gen., for the State. sent for to buy part of the shoes, and that on Saturday evening—the day the shoes were placed in Zellinger's store- Zellinger gave FOX, J. (after stating the facts). The recZeidell $100, which was turned over that same ord in this case presents three legal proposievening to Mintz. On Sunday Zeidell testified tions for consideration: (1) It is insisted be was sent for, and told to get ordinary dry that the testimony in this cause does not poodis boxes and pack the shoes in; that he establish a larceny of the property in the and Zellinger, Zellinger's clerk, and the young sister state, but simply shows the obtaining Dan who brought the shoes on Saturday of goods under false pretenses, and therefore opened the cases, and packed the shoes, or defendant's offense does not fall within that ratber dumped them, in large dry goods box- provision of section 2362, Rev. St. 1899;
That while they were at work at this, hence he was improperly convicted under that section. (2) That the indictment upon the transfer company, it was simply taken which this prosecution is predicated is in- for granted that he was authorized to resufficient, by reason of the omission of any ceive the goods for the purpose of delivery allegation charging that the property was to the shoe company in the city of St. Louis, stolen in the state of Illinois and brought to and the goods were delivered to him under this state. (3) The correctness of the in- those circumstances. It is insisted that Recstructions given by the court are challenged, tor, having been previously engaged as a and error is also assigned upon the refusal driver for the transfer company which was of the court to give instructions requested authorized to receive and deliver goods to by defendant.
the shoe company, appearing at the depot of Section 2362, Rev. St. 1899, upon which the railroad company in his usual way, with this prosecution is based, provides: "Every a wagon, calling for the cases of shoes charperson who shall steal, or obtain by robbery, ged to have been stolen, and the delivery of the property of another in any other state the goods to him under the circumstances, or country, and shall bring the same into constitutes the offense of obtaining the cases this state or country, may be convicted and of shoes in controversy under false pretenpunished for larceny in the same manner as ses; not by larceny. In other words, that if such property had been feloniously stolen while there was no express representations or taken in this state, and in any such case or pretenses made to secure the delivery of the larceny may be charged to have been the goods, yet, considering all the circumcommitted, and every person may be indicted stances which resulted in the obtaining of and punished, in any county into or through the goods, it amounts to a pretense or false which such stolen property shall have been representation that he was still a driver for brought.” At the very inception of the con- the transfer company, with full authority to sideration of the proposition presented to us receive freight for the shoe company, when for solution it is not inappropriate to say in fact such pretense was false, and he had that learned counsel for appellant has said no such authority. It is unnecessary to exeverything that can be urged in support of press an opinion upon the correctness or inthe contentions presented. It must be con- correctness of this insistence by the appelceded that it is essential to constitute the lant. Courts of high standing have treated offense denounced by the statute that the conduct similar to that of Rector as amountproperty in the sister state must be stolen, ing to the practice of false pretenses. This or obtained by robbery. It is clear that the contention may be conceded, and still we facts developed at the trial do not show that are quite distant from the solution of the the property was obtained by robbery. None vital and overshadowing question as to of the essential elements of that offense are whether the defendant, under the facts dispresent, according to the testimony offered. closed at the trial, was guilty of larceny or Hence that brings us to the consideration of obtaining goods under false pretenses. The the first proposition-as to whether or not railroad company was in possession of the the evidence developed at the trial estab- property charged to have been stolen, and lished the obtaining of the property by lar- this possession constitutes a sufficient ownceny, as contemplated by the statute.
ership as against the wrongdoer. State v. It is insisted by appellant that the proof in Waghalter, 177 Mo. 676, 76 S. W. 1028; this case is insufficient to establish larceny; Greenleaf's Evidence (16th Ed.) vol. 3, § 161. hence that, if it shows anything, it was the In State v. Anderson and State v. Buck, suobtaining of property under false pretenses. pra, the distinction between the offenses of The distinction between larceny and obtain- obtaining goods under false pretenses and ing goods under false pretenses was care
larceny has been clearly drawn. It can fully marked in the recent cases of State v. serve no useful purpose, nor can it add anyAnderson, 84 S. W. 946, State v. Buck, 84 thing to the legal literature, to burden this S. W. 951, State v. Copeman, 84 S. W. 942,
opinion with a repetition of what was said decided by this court. A fair and reasonable
in those cases; hence we must be content application of the rules announced in those
with a simple reference to the general rules cases must furnish the solution of the first
making the distinction in those two offenses proposition presented in this case.
as are announced in the adjudications which plicable to this first proposition, the facts are have met the approval of this court. undisputed, and may thus be briefly stated:
The authorities uniformly recognize the Rector, who obtained the goods from the narrow margin between a case of larceny railroad company, had been for a long time and where the property has been obtained by in the employ of the transfer company that false pretenses, and fully appreciate the usually received and delivered the freight nicety as well as the importance of the disfrom the Big Four Depot consigned to Gie tinction. In the treatment of the distincsecke-D'Oench-Hays Shoe Company. There tion between larceny and obtaining property was little or no conversation between the under false pretenses the authorities employ employés of the railroad company and Rector different terms in giving expression to the in respect to getting the cases of shoes. rules governing the distinction, but the same Rector made no representation, and it is ap- conclusion is reached, and the general rule parent that, he having formerly worked for is now settled and fully recognized that,