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the same from said encroachments. The defendant declined so to do, on the ground that under its contract it was not obligated to protect that portion of the defendant's right of way. In the winter of 1895, to prevent a repetition of the experience of 1894, the defendant constructed four dikes, two of which were projected into the river, between the points B and C, and two others between the point C and the mouth of the Big Blue river, which emptied into the Missouri river, between the points C and D. The work done in the summer of 1894 was "emergency work." whereas the dikes were "permanent work." No estimate of costs in advance of the doing of the "permanent work" was made by the engineers of the parties to the contract, as provided in section 2 of the contract for "permanent work." The plaintiff refused to do said work to protect the portion lying between the points B and C, and the defendant had the work done, and did not at any time until a short time before the institution of this suit, and after being threatened with suit by the plaintiff, assert any claim against the plaintiff therefor, or render to the plaintiff any account of the expense incurred by it in so doing. The work thus done to protect the portion of the defendant's right of way between points B and C is the sole point involved in this case, and is the whole foundation for the defendant's counterclaim.

1. The defendant's counterclaim is based entirely upon the contract of 1891. Unless, therefore, the contract authorized the defendant to do the work sought to be recovered for by it in this action, the counterclaim must fail. The defendant having elected to stand on the contract, it is not entitled to recover, even though the work done by it may have been of value to the plaintiff in the protection of the other parts of the plaintiff's right of way, which the plaintiff was under obligation to protect. A party cannot count upon a contract and recover upon a quantum meruit. Cole v. Armour, 154 Mo., loc. cit. 351, 55 S. W. 476, and cases cited.

The record does not disclose why the defendant did not contract for the use of or easement over the portion of the plaintiff's right of way which lies between points B and C, as well as over the other portions of the plaintiff's right of way. It is not, therefore, for the court to speculate as to the causes or reasons which actuated the parties in

making this difference. Courts can only give effect to contracts, when legal, as the parties themselves have made them. The defendant's right in this case must depend upon the construction of the contract. It is not contended by the defendant that the words or letter of the contract cast any obligation on the plaintiff to protect the right of way between the points B and C from the encroachments of the river, but the defendant contends that the whole spirit of

the contract casts such an obligation on the plaintiff. The defendant reasons that it was obligatory upon the plaintiff to protect its own right of way from the encroachments of the river, and that the construction of the defendant's road north of the plaintiff's right of way, and the agreement of the defendant to pay the plaintiff one-half of the cost of such protection, necessarily casts upon the plaintiff the duty of protecting its whole right of way, and that the plaintiff failed in this duty, and that the defendant was obliged to do the work in order to protect its own right of way between points B and C, and thereby incidentally benefited the plaintiff's right of way between those points, and likewise benefited it at other points where the defendant's road was constructed on the plaintiff's right of way, and which, by the terms of the contract, the plaintiff, concededly, was under obligations to do the work of protecting.

The defendant further claims that the construction put on the contract by the acts of the parties should control the court in its construction of the contract, and under this contention the defendant claims that the plaintiff did work 1,000 feet west of the point D, where the defendant's road entered upon the plaintiff's right of way, so as thereby to protect the portion of the defendant's right of way which lies east of point D, and that the plaintiff rendered bills to the defendant for one-half of the cost thereof, and the defendant paid the same. The defendant, however, is clearly in error in this branch of its contention, for there is no evidence whatever to sustain the contention. It is true that the plaintiff did such work at the point 1,000 feet east of point D, but the evidence shows that it did so under a contract with the Kansas City & Suburban Belt Railway Company, and not under its contract with the defendant, and that the plaintiff and the Kansas City & Suburban Belt Railway Company paid the cost thereof, and the defendant paid no part thereof. This feature of the defendant's contention will therefore receive no further consideration.

Under the issues joined in this case it may be conceded that, if the defendant had not done the emergency work between points B and C in the summer of 1894, the result might have been that after washing away the defendant's right of way the river might have encroached upon the plaintiff's right of way, and that by protecting its own right of way from the inroads of the water the defendant thereby conferred an incidental benefit upon the plaintiff. But the complete answer to this is that the defendant had no contract with the plaintiff so to do, the plaintiff refused to have anything to do with the work or to pay any part of the cost thereof, and the defendant could not create a contract with the plaintiff therefor without its consent; and in this action it is only entitled to recover by virtue of contract, for its right

is, in this action, predicated upon the contract. The defendant has no more claim against the plaintiff for such work because of the incidental benefit that accrued to the plaintiff from the doing thereof, than it has against the Chicago & Alton Railroad, whose tracks lie south of the plaintiff's right of way, and which might have also been washed away if the defendant had not done such work. The same is true as to the owners of all other property lying eastwardly of the points C and B who were incidentally benefited by the emergency and permanent work done by defendant.

The contract casts a specific obligation upon the plaintiff to protect specified portions of its right of way from the inroads of the river, and there is no pretense that the plaintiff failed in its duty as to such portions. Neither the letter, the context, nor the spirit and meaning of the contract casts any obligation on the plaintiff to protect the defendant's right of way between the points B and C. This being true, the trial court properly overruled the defendant's demurrer to the evidence, and likewise properly instructed the jury to find against the defendant on its counterclaim, and in favor of the plaintiff for $8,074.22, with 6 per cent. interest thereon from the 15th of July, 1897, the date when the same became due, was demanded, and was not paid.

2. The defendant next contends that the verdict is excessive. The gravamen of this contention is that $8,074.22, with 6 per cent. interest thereon from July 15, 1897, to October 31, 1900, does not aggregate $9,722.70, the amount of the verdict. The plaintiff admits that the verdict is $53.85 in excess of the proper amount due the plaintiff under the instruction of the court. The plaintiff, however, contends that whilst it should be required to, and is willing to, remit the $53.85, it should not be charged with the costs of this appeal, because this specific objection was not made in the trial court, and the plaintiff was not given an opportunity there to remit the excess of damages; and the plaintiff contends that whilst the defendant, in its motion for new trial, claimed that the damages assessed by the jury were excessive, such general allegation was not sufficient to put plaintiff and the trial court upon notice of the particulars wherein the defendant claimed the damages were excessive. What the plaintiff urges may be true, yet as the motion for new trial assigned as a ground therefor that the damages were excessive, and as the instruction of the court was to find a specified sum, with specified interest from specified dates, it was a mere matter of mathematical calculation as to whether or not the verdict exceeded the amount the jury were instructed to return a verdict for. The plaintiff could have made that calculation at that time as well as now, and its contention must therefore be resolved against it.

Upon the plaintiff remitting the sum of

$53.85 within 30 days, the judgment of the circuit court will be affirmed, otherwise it must be reversed and the cause remanded for a new trial. All concur.

NEWMAN v. MERCANTILE TRUST CO. et al. (Supreme Court of Missouri, Division No. 1. May 24, 1905.)

1. FRAUD-PLEADING.

A mere charge of fraud, without specification of the acts which constitute the alleged fraud, is not a good allegation of fraud.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Fraud, § 37; vol. 39, Cent. Dig. Pleading, 282.

2. CORPORATE STOCK-SALES-FRAUD.

A transaction by which a railroad attempted to procure through a trust company a majority of the stock of a ferry company by offering to shareholders who accepted the proposition a certain price per share for the stock, to be paid on the condition that a majority of the stock could be so acquired, was not rendered fraudulent by the act of the trust company in purchasing part of the desired stock at a higher price from outside parties and completing the contract with the accepting shareholders without divulging that fact.

3. TROVER- TITLE OF PLAINTIFF - RIGHT TO POSSESSION.

In order to maintain trover for shares of stock, plaintiff must have been the owner of the shares and entitled to their possession at the time of the alleged conversion.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, § 119.] 4. SAME-DEMAND AND REFUSAL.

Demand and refusal are evidence of con

version.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, § 58.] 5. CORPORATE STOCK-SALES-ACCEPTANCEΡΑΥΜΕΝΤ.

A stockholder in a corporation, together with other stockholders, surrendered his stock to a trust company, which executed an agreement to purchase the stock of the parties, accepting the same at a stipulated price, on condition that it could in that manner purchase a majority of the stock of the corporation. The trust company gave the stockholder a receipt for his stock, obligating it to deliver the same to him or pay him the price specified on or before a certain date. The trust company before the date specified exercised its option by accepting the stock and paying the stockholder the specified purchase price. Held, that by the acceptance of the stock and payment of the purchase price the sale was complete, and title to the stock passed to the trust company. 6. SAME VALIDITY OF SALE- UNDISCLOSED PRINCIPAL.

A transaction by which a trust company acquires the stock of a ferry company for a foreign railroad company, which is not disclosed as a principal in the transaction, is not, as between the trust company and the vendors of the stock, rendered invalid because of any inability of the railroad to legally acquire the stock.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Louis E. Newman, trustee, against the Mercantile Trust Company. From an order overruling a motion to set aside a nonsuit, plaintiff appeals. Affirmed.

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John W. Noble and George H. Shields, for appellant. Klein & Hough, Clinton Rowell, Joseph H. Zumbalen, and Joseph S. Laurie, for respondent.

BRACE, P. J. This is an appeal from an order of the St. Louis circuit court overruling plaintiff's motion to set aside a nonsuit. The suit was instituted on the 13th of May, 1902. The defendants are the Mercantile Trust Company, the Chicago, Rock Island & Pacific Railway Company, John Scullin, and Festus J. Wade.

The petition is in two counts. The first count is as follows: "Plaintiff states: That the defendant the Mercantile Trust CompaBy was at the time hereinafter stated, and now is, a corporation duly organized under the laws of the state of Missouri, providing for the incorporation of trust companies. That the Chicago, Rock Island & Pacific Railway Company was at the times hereinafter stated, and now is, a railroad corporation duly incorporated under the laws of the state of Illinois. That the plaintiff, Louis E. Newman, is, and was at the times hereinafter stated, the trustee appointed by and acting under the last will and testament of Socrates Newman, deceased, said will having been duly probated in the probate court in and for the city of St. Louis, Missouri, and that plaintiff brings this action in his capacity as said trustee. That heretofore, to wit, on the 23d day of April, 1972, plaintiff owned and held as such trustee 100 shares of the capital stock of the Wiggins Ferry Company, a corporation duly incorporated under the laws of the state of Linois, and was lawfully possessed of the certificates duly issued for said 100 shares of stock. That on the 28th of April, 1902, the defendant John Scullin, a director and president, and defendant Festus J. Wade, a director, of the Wiggins Ferry Company, officially and individually illegally combined with said Mercantile Trust Company and sald Chicago, Rock Island & Pacific Railway Company, defendants, to deceive and defraud plaintiff, and presented to this plaintiff a paper or offer to purchase said stock, as follows: "The Mercantile Trust Company, acting herein for other parties, offers to purchase a majority of all the shares of the capital stock of the Wiggins Ferry Company, a corporation existing under the laws of Illinois, and agrees to pay therefor on the delivery of the certificates for so many of said shares, not less than a majority, as shall be deposited with said trust company on or before May 5th, 1902, properly endorsed in blank for assignment and transfer on the books of said Ferry Company the sum of five hundred dollars per share. The Trust Company acting in the capacity as agent of other parties is to receive from such other parties for its services a commission of two and ne-half per cent upon the purchase price

Plain

of five hundred dollars per share in addition to said purchase price. The Mercantile Trust Company will not be obliged to accept any stock unless the owners of a majority of shares have agreed to sell the same to said Mercantile Trust Company, agent, on or before May 5th, 1902.' (Signed 'Mercantile Trust Company, by Festus J. Wade, President.") That in connection with said offer to purchase there was prepared and attached to said offer as a part of the proposed contract an acceptance to be signed by the stockholders of said Wiggins Ferry Company, in words and figures as follows, to wit: "The undersigned stockholders of the Wiggins Ferry Company, do hereby accept the foregoing proposition and sell to the Mercantile Trust Company on and subject to the terms therein stated, the number of shares of the capital stock of the Wiggins Ferry Company set opposite to our respective names.' tiff says that, relying on the terms of said offer and acceptance, and that it was the intention of said trust company to purchase not less than a majority of said stock at and for the price of five hundred dollars a share, and no more, and that if said trust company did not obtain such majority of stock on or before the 5th day of May, 1902, at said price of five hundred dollars a share, that his said stock would be returned to him, plaintiff signed said acceptance and delivered his stock, or the certificates representing the same, to said trust company, and received a receipt therefor, being a receipt for certificates for one hundred shares of the capital stock of the Wiggins Ferry Company assigned in blank; said shares being deposited with the Mercantile Trust Company under and in pursuance of said proposition made by said Trust Company as agent for other parties, and the acceptance thereof signed by L. E. Newman, trustee of Socrates Newman's estate, dated April 24, 1902, for the purchase of said shares. Plaintiff states that afterwards, to wit, on April 28, 1902, and before the time on which said contract could have become binding on the plaintiff, all said defendants, having so combined to deceive and defraud plaintiff, did further misrepresent the facts as to purchases of stock under said contract, and to illegally retain the same and withhold the same from plaintiff the said Mercantile Trust Company sent plaintiff by mail a letter inclosing to him its treasurer's check for the sum of fifty thousand dollars in payment, as stated in said letter, for one hundred shares of stock in the Wiggins Ferry Company, sold in accordance with the terms of the proposition made by said company and accepted by plaintiff, thereby representing that the terms and conditions of said proposal and acceptance had been fully complied with by said Mercantile Trust Company, and that a majority of the stock of the Wiggins Ferry Company had been acquired from the stockholders at the price

named therein. Plaintiff states that he notified said Mercantile Trust Company that he accepted said check only on condition that said trust company had fully carried out said contract on its part, and had obtained the majority of said stock at and for the price of five hundred dollars a share, and that plaintiff waived no rights which he might have in the matter. Plaintiff states that said Mercantile Trust Company has at no time purchased, secured, and had a majority of said stock for itself, or for any principal represented by it-that is, over five thousand shares thereof; that, in order to obtain what shares it did have on said 5th day of May, 1902, said Mercantile Trust Company paid to other stockholders much more than five hundred dollars a share, and the purchaser has not kept and performed the offer and contract on its part, and that on the 5th day of May, 1902, said purchaser did not have a majority of said stock, and did not purchase what he did have at five hundred dollars a share, and thereby this plaintiff was released from said agreement, and said purchasers were bound to return said stock of this plaintiff to him. That on said 5th day of May plaintiff, learning of the failure of said purchasers to so keep said contract, and that the same had been so violated by them, he did then and there tender back to said trust company and said purchasers, in good and sufficient form, the full sum of fifty thousand dollars, which was the sum so sent plaintiff by check as aforesaid. That the said Mercantile Trust Company, by said Wade as president, acknowledged the sufficiency of said tender as to amount and form, and plaintiff then and thereupon demanded the return to him of his certificates of stock, but said Wade, as president as aforesaid, in conjunction with his attorney, then present, refused to accept the said tender or return to plaintiff his said stock certificates, said Wade declaring that he had turned them over to the said defendant the Chicago, Rock Island & Pacific Railway Company, which was, as said Wade declared, and as plaintiff avers, the party represented by said Mercantile Trust Company in said transactions. Plaintiff states that said defendants in the manner aforesaid unlawfully converted said stock to their own use; that the same was then and there of the value of fifteen hundred dollars per share and of the value of one hundred and fifty thousand dollars; that by said unlawful conduct and conversion of said stock by defendants, plaintiff has been damaged in the sum of one hundred and fifty thousand dollars, which is due plaintiff and unpaid, for which plaintiff asks judgment of defendants, with interest and costs."

The second count is in the form of a common-law action of trover for the conversion specifically set out in the first count.

The answer of the defendants is as fol

lows: "Now come the defendants in the above-entitled cause, and for answer to the first count of plaintiff's petition herein admit that defendant the Mercantile Trust Company was at the time stated and is a corporation organized under the laws of Missouri providing for the incorporation of trust companies; admit that the Chicago, Rock Island & Pacific Railway Company was and is a railroad corporation incorporated under the laws of Illinois; admit that plaintiff was and is the trustee under the last will and testament of Socrates Newman, deceased. Defendants further admit that plaintiff owned and held, as said trustee, one hundred shares of the capital stock of the Wiggins Ferry Company, and that plaintiff, on or about April 25, 1902, for a consideration of five hundred dollars per share, amounting to fifty thousand dollars, in cash, paid to him by the Mercantile Trust Company, sold and delivered his one hundred shares of stock of the Wiggins Ferry Company to said Mercantile Trust Company, acting for and on behalf of defendant the Chicago, Rock Island & Pacific Railway Company. And defendants deny each and every other allegation contained in the first count of plaintiff's petition.

And for answer to the second count of plaintiff's petition, defendants deny each and every allegation therein contained." In support of his action the plaintiff introduced the following evidence:

The plaintiff testified as follows: "That he was forty-one years old, son of Socrates Newman, and trustee under his will. April 24, 1902, held 100 shares of stock of the Wiggins Ferry Company as such trustee. John Scullin was president of the Wiggins Company. There was an agreement for a voting trust existing between the stockholders of the Wiggins Company at that time. Received dividends on stock. The stock was held in two lots-thirty shares outside voting trust, seventy shares in that trust. On the 25th of April (1902) received a letter from John Scullin, president Wiggins Company. (Identifies letter.) Knows Scullin's signature." Letter admitted, and marked "Exhibit No. 1," on Wiggins Ferry letter head, and is as follows:

"St. Louis, April 24, 1902. Dr. L. E. Newman, City-Dear Sir: I have a matter pertaining to this company which requires the immediate action of its stockholders, and deem it to be of the utmost importance that you should call at my office at once. Please regard this as strictly confidential. Yours respectfully, John Scullin, President."

After receiving the letter he went to Wiggins office. Met Mr. Wade, who stated that Scullin had left him to look after affairs; that Scullin had gone to a meeting, and had left him to take charge of things. "He then stated to me that the Mercantile Trust Company had an offer to buy a majority of all of the stock of the Wiggins Ferry Company at $500 a share. He then handed me a pa

per, which I read, signatures to which I,*(100) shares of the capital stock of the Wiglooked over, and without very much ado I signed the paper. (Identifies that paper.) Knows signature of Festus J. Wade thereto, president of the Mercantile Trust Co. I signed it 'Socrates Newman Estate, L. E. Newman, Trustee'; '100' opposite indicating 100 shares." The paper was admitted in evidence as Exhibit No. 2, and reads as follows: "St. Louis, April 24, 1902.

"The Mercantile Trust Company, acting berein for other parties, offers to purchase a majority of all of the shares of the capital stock of the Wiggins Ferry Company, a corporation existing under the laws of Illinois, and agrees to pay therefor on the delivery of the certificates for so many of said shares, not less than a majority, as shall be deposited with said Trust Company on or before May 5th, 1902, properly endorsed in blank for assignment and transfer on the books of said Ferry Company, the sum of five hundred dollars ($500) per share. The Trust Company acting in the capacity as agent of other parties, is to receive from such other parties for its services a commission of two and one-half (21⁄2) per cent upon the purchase price of five hundred dollars ($500) per share, in addition to said purchase price. The Mercantile Trust Company will not be obliged to accept any stock unless the owners of a majority of shares have agreed to sel the same to said Mercantile Trust Company, agent, on or before May 5th, 1902.

"Mercantile Trust Company,

"By Festus J. Wade, President. "The undersigned stockholders of the Wiggins Ferry Company do hereby accept the foregoing proposition and sell to the Mercantile Trust Company on and subject to the terms therein stated, the number of shares of the capital stock of the Wiggins Ferry Company set opposite our respective names. Names. No. of Shares. 2,296 shares 20

John Scullin, and others
Festus J Wade

Socrates Newman Estate, L. E.
Newman, Trustee

Louis Nidelet, by Ernest Peugnet,
Atty.

Marie O. Puegnet, by Ernest
Peugnet, Atty.
Ernest Puegnet

66

66

100

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Witness continues: "Did not sign that day. Signed Friday, April 25th, about 4:30. Delivered the stock Saturday, April 26th, to Mercantile Trust Company, about noon. It was indorsed in blank, so it could be transferred on the books of the company. Received a receipt from Mr. Wilson, treasurer of the Mercantile Trust Company. (Identifies receipt.) Knows the signature of Mr. Wilson, treasurer of the Trust Co." Receipt dated April 26, 1902, marked "Exhibit No. 3," reads as follows:

"Received, St. Louis, April 26, 1902, from L. E. Newman, Trustee Soc. Newman estate, certificate Nos. 120-129-932 for one hundred

gins Ferry Company, assigned in blank, said shares being deposited with the Mercantile Trust Company under and in pursuance of a proposition made by said Trust Company, as agent for other parties, and the acceptance thereof, signed by the said L. E. Newman, Trustee Soc. Newman Est. dated April 24th, 1902, for the purchase of said shares. The said Trust Company is either to pay for such shares of stock at the rate of five hundred dollars ($500) per share net, or to re deliver said certificate to said L. E. Newman, Trustee Soc. Newman Est. on or before May 5th, 1902. "Mercantile Trust Company,

"By Geo. W. Wilson, Treasurer." Witness continues: "April 29th received a communication from Mercantile Trust Com. pany. (Identifies paper and Mr. Wade's signature.)"

The paper reads as follows:

"Mercantile Trust Company.

"St. Louis, April 28, 1902. "Mr. L. E. Newman, Trustee Soc. Newma Estate, 3024 Locust St., City-Dear Sir: Enclosed please find our Treasurer's check for the sum of fifty thousand dollars ($50,000) in payment for your one hundred (100) shares of stock in the Wiggins Ferry Company sold by you in accordance with the terms of the proposition made by this company and accepted by you. Kindly acknowledge receipt of the same, and oblige. Yours very truly, "Festus J. Wade, President." Witness continues: "I went to see Mr. Wade after I received that check, either the day I received it or the next day. I said to Mr. Wade, in substance: 'Are you very busy?' and he said, 'Yes, I am always busy;' and I said, 'I would like to see you about a matter of importance.' 'Well,' he said, ‘if it is about Wiggins, I can talk to you.' 'Well,' I said, I received a check for $50,000 from your company, and I want to say to you that I acknowledge the receipt of that check upon the assumption that you have fulfilled, or are fulfilling, the terms of your agreement, namely, that you have paid only $500 a share, and that you have a majority of the stock.' I said, 'If you are not fulfilling your contract, or if you have not fulfilled your contract, I expect to hold you for the difference between $500 a share and the higher sums which I can prove you have paid.' He said, 'I hear you.' 'Well,' I said, 'if you hear me, that is about all I have to say.' 'Well,' he said, 'I have got your stock anyhow;' and I Isaid, 'Very well; good day.' I then went to my office, and made a short memorandum of the conversation, and indited a letter to the Mercantile Trust Co. practically embodying my verbal statement to Mr. Wade." Witness then identified a copy of the letter, saying it is an exact copy made before the letter was mailed by himself in his own handwriting. "Wrote two letters, duplicated, and this is a copy. I sent the original of that copy

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