Albers v. Merchants' Exchange of St. Louis

120 S.W. 139, 140 Mo. App. 446, 1909 Mo. App. LEXIS 146

• Court: Missouri Court of Appeals
• Decided: June 8, 1909
• Status: Published

Opinion

NORTONI, J.

This is a suit in equity for injunc-tive relief. Plaintiff recovered and defendant appeals. Plaintiff is a commission merchant in the city of St. Louis and president of the C. H. Albers Commission Company. Defendant, Merchants’ Exchange, is a non-trading corporation, organized under Art. 11, Chap. 12, R. S. 1899, in regard to benevolent, religious, scientific, etc., corporations. Its purpose is to promote trade and facilitate business among its members. It appears plaintiff is a member of the Merchants’ Exchange and as such enjoys the privileges of trading on the floor of that institution. The Hubbard & Moffitt Commission Company is likewise engaged in the commission business. The president of that concern is Mr. N. L. Moffitt, a commission merchant. He, too, is a member of defendant Merchants’ Exchange, and as such enjoys the privileges of the floor of that institution for the purpose of trading. In the autumn months of 1903, at different times, plaintiff sold to the Hubbard & Mof-fitt Commission Company a considerable quantity of number two red winter wheat, to be delivered during the month of December of that year. The sale mentioned was negotiated by the plaintiff, Mr. C. H. Al-bers, on behalf of his company, and by Mr. N. L. Mof-fitt, on behalf of the purchaser, The Hubbard & Moffitt Commission Company. In connection with these sales, plaintiff deposited as security for the performance of the contracts on the part of himself and his company with the Hubbard & Moffitt Company a sum of money in excess of twenty thousand dollars, and executed as evidence of such sales, at different dates, several contracts to the Hubbard & Moffitt Company. The contracts referred to were in the following form:

“St. Louis, Mo. -.

“We have this day sold to (or bought of) and hereby agree to deliver to (or receive from) - bushels-at-cts. per bushel, to be delivered at seller’s option during the month- of- in regular elevators. This contract is subject in all respects to the Rules and Regulations of the Merchants’ Exchange of St. Louis.”

These contracts were given into the possession of Mr. Moffitt for his company and were retained by it as evidence of its right to demand delivery of the wheat purchased. At the same time, and in conjunction therewith, Mr. Moffitt executed and delivered to the plaintiff for his company several contracts in like form evincing the undertaking of the Hubbard & Moffitt Company to receive the wheat when tendered in accordance therewith. The matter ran along until December 31, 1908, or the last day for delivery, and plaintiff failed to deliver the wheat theretofore sold to the Hubbard & Moffitt Commission Company. It appears that by competent authority of the Merchants’ Exchange, of which both parties were members, the price of number two red winter wheat for delivery on December 31st, was ascertained and fixed at ninety-two cents per busbel. Plaintiff having failed to deliver the wheat referred to, Mr. Moffitt declared the contracts therefor breached, and ascertained and determined his damage on account of the breach by calculating the difference between the price at which he purchased the same and the price of ninety-two cents per bushel fixed by the Merchants’ Exchange on December 31, 1903, the day the delivery should have been made. To compensate for the damage thus ascertained, he appropriated a sufficient amount of the plaintiff’s funds deposited with his company as margins, or, as otherwise stated, as security for the performance of the contract, to liquidate the damage, and remitted to the plaintiff the balance of those funds, in amount $1,790.25. This occurred some weeks after December 31st. About this time, plaintiff instituted several suits in the circuit court of the city of St. Louis against Messrs. Spencer, Milliken, and others, in which he alleged that the price of ninety-two cents per bushel for wheat, as fixed by the Merchants’ Exchange on December 31, 1903, was fictitious, in that it was brought about through a corner in wheat which had been engineered by those gentlemen and by Mr. N. L. Moffitt and the Hubbard & Moffitt Co., which participated and acted as agents for Spencer and Milliken, and wrongfully participated in cornering the market. The record is quite indistinct in respect of these suits and the character of relief sought therein. Enough appears, however, to show that plaintiff, instead of acceding to the price of ninety-two cents per bushel for wheat on December 31, 1903, was continually combating it as fictitious. Some time after these suits were instituted, M'r. Moffitt, for the Hubbard & Moffitt Company, proffered to surrender to the plaintiff the several contracts held by him and his company against plaintiff for the purchase of the wheat and demanded of the plaintiff that he surrender as well to Mr. Moffitt and the Hubbard & Moffitt Company the several contracts which plaintiff; held, requiring the Hubbard & Moffitt Company to receive the wheat if tendered. However, at the time Mr. Moffitt demanded his contracts from plaintiff and proffered to surrender to plaintiffs the contracts which he and the Hubbard & Moffitt Company held against the plaintiff, he did. not proffer to surrender plaintiff’s funds which he had theretofore appropriated to compensate the alleged damages for the breach of those contracts. Plaintiff declined to accede to this request to surrender the contracts referred to, insisting that he had the right to retain possession of the same, probably for use in the several law suits then pending with respect to the alleged comer of the wheat market. Not having surrendered the contract referred to, Mr. Mof-fitt preferred charges against plaintiff with the board of directors of the Merchants’ Exchange and alleged that plaintiff had failed to comply with the terms of a business contract or obligation, in this, that he refused to surrender to him, Mr. Moffitt and Hubbard & Moffitt Commission Company, various contracts which he held requiring them to receive the wheat upon delivery during the month of December, 1903. ‘ The purpose in filing these charges and the prayer of the complaint was to the effect that the board of directors should discipline the plaintiff for his conduct in that behalf by removing or suspending him from membership in the Merchants’ Exchange. Plaintiff was duly notified of these charges and appeared before the board of directors of the Merchants’ Exchange for trial, insisting that the board was without jurisdiction in the premises, for the reason that he had violated no by-laws or precept of the institution nor had he violated the terms of any business contract. The matter was inquired into by the board of directors and on May 6, 1904, plaintiff was found guilty of having violated the terms of a business contract by not surrendering to Mr. Moffitt the several contracts referred to and was therefore suspended from membership and denied the privileges of the floor of the institution for the remainder of that year; that is, until December 31, 1904. Plaintiff immediately applied to the circuit court of the city of St. Louis and sued out the writ of injunction in this cause, to restrain the defendant Merchants’ Exchange from enforcing the resolution or order of its board of directors of May 6, 1904. Upon a hearing, the circuit court found the issues for the plaintiff and granted perpetual relief by enjoining the defendant Merchants’ Exchange from excluding the plaintiff from his'rights or privileges as a member thereof, by reason of such resolution of May 6, 1904. On appeal therefrom, defendant argues that its board of directors proceeded rightfully within its power and in accordance with its by-laws in suspending plaintiff and denying him the privileges of the floor of the Exchange, and that the circuit court erred in giving judgment to the contrary. Defendant concedes that it has no by-laws requiring a member to surrender contracts to another at the conclusion of any of the transactions between them. And it is conceded, too, that defendant has no by-law authorizing its board of directors in express terms to discipline or suspend a member for failing to surrender such contracts. The by-laws of the institution confer authority upon the board of directors, after proper notice and hearing therein provided for, to discipline, suspend or expel a member for numerous causes. Among those causes, the board of directors is authorized to discipline or suspend a member who “shall be guilty of failing to comply promptly with the terms of any business contract or obligation, or of failing to equitably adjust and settle the same.” Of course, the latter specification of this by-law — that is, that portion of it authorizing a suspension of a member for failing to equitably adjust and settle a contract — has no application to the facts of this particular case, for the reason it implies that before it becomes of influence in the matter the parties shall have attempted to adjust or settle the controversy and one member has failed to do so. This particular portion of the by-laws is not invoked by the appellant here, for in this case, the complainant, Mr. Moffitt, and his company, upon a breach of the contract, measured and ascertained the extent of their damage to their own notion and appropriated plaintiff’s funds to the liquidation of such damage, without consulting him. In such circumstances, of course Mr. Moffitt and his company are in no position to complain of the refusal of Mr. Albers to equitably settle or adjust that matter. In fact, it appears that Mr. Albers had nothing whatever to do with the settlement or adjustment. The matter was determined by Mr. Moffitt and his company to their own satisfaction and as they saw fit, without consulting the wishes of Mr. Albers and his company in any manner.

Be this as it may, this particular feature of the transaction is unimportant at this time for the reason the proceeding to suspend plaintiff from his membership was not predicated on a violation of this provision of the by-laws, but, instead, it predicates upon the prior clause thereof, to the effect that the board of directors may suspend a member “who shall be found guilty of failing to comply promptly with the terms of any business contract or obligation.” It is conceded that the contracts referred to contain no express terms requiring either party to surrender or exchange the same with the other. By reference to the contracts, the form of which is hereinbefore set out, it may be seen that no such express stipulation is contained therein. It is true, as argued by appellant, that the contracts recite that they are in all respects subject to the rules and regulations of the Merchants’ Exchange. This recital does not operate to aid the case for the defendant by incorporating any express provision of the rules or regulations of the exchange therein to the effect that a member may be suspended for failing to exchange contracts, for it is conceded that the institution has no express rule or regulation in any manner expressly touching upon this matter. It is argued, however, that there was and is a custom among the members of the exchange to surrender such contracts upon a settlement of the matters therein involved. To quote from appellant’s brief, the precise argument presented, in speaking of plaintiff’s refusal to surrender the contracts to Mr. Moffltt and his company, the following language appears: “This was in violation of the custom and the purpose of the rules of the exchange which contemplate not only that a settlement shall be made between the members, but that they shall be completely settled, and until so settled, the member has not complied with a business contract.” Now from this, the appellant’s theory of the case seems to be, that even though there is no express term in either the contract between the parties or the laws and regulations of the Exchange, requiring the surrender t>f such contracts, there is an implied term therein to that effect, which is acted upon by the members. Therefore, the proceeding in this case by the board of directors which sought to- forfeit the rights of the plaintiff, for a time at least, to further participate as a member of the Exchange is predicated upon this implied term of either the contract or by-laws. It should be a sufficient answer to the entire proposition involved in this argument to reassert Judge Goode’s language, that words are never appraised at more than their real value when a forfeiture is sought in their name. [Morton v. Supreme Council, 100 Mo. App. 76.] In this case, it was sought to forfeit the rights of the plaintiff who is a member of the defendant corporation; and this, too, upon mere implication of authority, looking to that end. If the proceeding is sought to be sustained by implication arising from the by-laws the authority therefor should be denied upon the proposition that it is a penal proceeding and that by-laws and statutes which forfeit the rights of persons are penal in character. Such by-laws, like statutes of that character, are to be both construed and pursued strictly. Nothing can be taken by intendment or implication to effectuate a forfeiture thereunder. In other words, the cause of forfeiture must fall within the terms of the law. [Lewine v. Sup. Lodge, 122 Mo. App. 547, 99 S. W. 821; Casey v. Transit Co., 116 Mo. App. 235, 91 S. W. 419; s. c. 205 Mo. 721.]

Now, touching the argument pertaining to the implied terms of the contracts in evidence to the effect of imposing the obligation upon the members of the Merchants’ Exchange to exchange contracts upon a settlement of their transactions. If such a custom obtains, if appears by the record that it obtains upon a settlement being had between the parties to the contracts. Now, in this case there was certainly no settlement between the parties to the contracts. The evidence shows clearly to the contrary. The fact that Mr. Moffitt and his company declared the contracts breached and appropriated a sufficient amount of the plaintiff’s funds in their hands to recompense the measure of damages in accordance with their own theory, without consulting plaintiff thereabout, certainly does not tend to show a settlement between the parties. It appears that plaintiff was contending all the time that the wheat market had been cornered by Moffitt, Spencer and Milliken, and that the price of ninety-two cents, by which Mr. Moffitt and his company measured their damages for the breach of the contract, was a fictitious standard, and improper for the purpose. To establish the validity of his claim to that effect, plaintiff instituted numerous suits in courts of competent jurisdiction, maintaining that he had been oppressed by means of the fictitious price established through a corner in wheat alleged to have been engineered by Mr. Moffitt, The Hubbard & Mbffitt Commission Company, and others hereinbefore mentioned. When the record shows a clear case of dispute and contention between the parties, as here disclosed, there certainly could have been no settlement which, on defendant’s theory of the case, is an essential prerequisite to invoking the implied term of the contract affixing the obligation upon the parties to exchange contracts upon a. settlement. In the sense employed, the legal significance of the term “settlement” is “A,n accounting; adjustment; liquidation in regard to amounts; as a settlement of accounts.” [Standard Dictionary.] From this it is Obvious that the word “settlement” involves the idea of mutuality between the parties; that they have, together, reviewed the matter of account, contract or otherwise, between themselves and adjusted the rights of each. Nothing appears in this case tending to show a settlement between the parties. According to the entire case presented, it appears that the implied term of the contract sought to be invoked here, if there be such an implied term, obtains only upon a settlement having been made between the parties. That is, that the obligation to surrender the contracts does not attach until a settlement has been made. And this would seem to be entirely proper, for as long as there is a dispute, it is certainly not improper for the parties to retain the writings evidencing the obligation on either side.

The judgment will be affirmed. It is so ordered.

Reynolds, P. J., and Goode, J., concur.