Full opinion text
WOODROUGH, Circuit Judge. This action at law was brought on March 21, 1931, in the Circuit Court of Greene County, Missouri, at the relation of Andrew Jean Stormfeltz, a citizen and resident of Kansas City, Missouri, against Title Guaranty and Surety Company, incorporated in Pennsylvania, and American Surety Company, incorporated in New York. The purpose of the suit is to recover amounts claimed to be due to relator from his guardian, and the action is brought upon the two hundred and fifty thousand dollar bond which was executed on November 7, 1911, by the guardian, Luther J. Stormfeltz, who is the father of relator, as principal, and by the defendant Title Guaranty & Surety Company (whose liability was later assumed by defendant American Surety Company) as surety. The bond was conditioned as required by statute for the faithful discharge of his duties by the guardian and was approved by the judge of the probate court of Mercer County, Missouri, at Princeton, where the appointment of the guardian was made. The case was removed to the federal court and the guardian, a citizen and resident of Kansas, was added as a party defendant. It appeared on the face of the petition as amended that the minority of the relator terminated and he became of age March 1, 1925, and on March 28th of that year the guardian filed in the probate court his purported final settlement, consisting of a report of debits and credits in his account in which he accounted to relator for the sum of $145,235.56, and that a recital was endorsed on the report over the signature of the judge of the probate court that the judge examined, approved and filed it on the same day, and that it was recorded in a settlement Record Book 7, at page 369. But it was alleged in the petition that the purported judgment of final settlement was null and void because statutory prerequisites to jurisdiction had not been complied with and by reason of certain extrinsic facts of fraud fully set forth in the petition. The petition contained sixty-eight separate counts, in each of which a breach of the bond was asserted and a cause of action was predicated thereon against defendants. It was prayed that the probate order of March 28, 1925, “in so far as it purports to be judgment of final settlement and discharge of said guardian, be adjudged void and held for naught”, and in each count that the plaintiff recover a certain sum with interest. The sufficiency of the plaintiff’s pleading was challenged by demurrers which were sustained by the trial court, but on appeal this court decided that a case at law was stated in the pleading and we remanded for trial. State of Missouri ex rel. Stormfeltz v. Title Guaranty & Surety Co., 8 Cir., 72 F.2d 595, certiorari denied, 294 U.S. 708, 55 S.Ct. 404, 79 L.Ed. 1242. On the trial a jury was waived, twenty-eight counts were voluntarily dismissed and the court rendered judgment against the defendants upon forty of the counts and a count added by amendment, in the aggregate amount of $435,083.25, limiting execution against the bondsmen to $397,676.51. On the seventh count the judgment was for defendants. The guardian having declined to' appeal, the sureties obtained severance and have prosecuted this appeal to reverse the judgment against them. The Jurisdiction of the Court. At the threshold of this appeal the appellants again take the position, as they did on the former appeal, that the state court from which the case was removed to the federal Court did not have jurisdiction of the action because jurisdiction in such cases was vested exclusively in the probate court by Missouri statutes. Our decision then was that the Missouri courts had consistently held that an action on a guardian’s bond could be maintained against the surety before any indebtedness had been previously established or any judgment of final settlement obtained in the probate court, and we sustained the jurisdiction of the district court to try the case presented by the petition. The point now argued is that we failed to take account of the “Discovery” provisions of the Missouri statutes which empower the probate courts to proceed against persons within their respective counties who may be suspected of having concealed or embezzled money, goods or effects of a ward. It is contended that those sections of the statute as construed by the courts of Missouri operated to divest the state circuit court and therefore the federal district court of jurisdiction in this case. The cases cited by appellants in support of this point are appended. On the other hand the appellee contends that the discovery proceedings under the probate code are intended to bring wrongfully withheld assets of an estate that is in process of administration, whether of a decedent or of a minor ward, into probate court for that purpose, and that in the present case where no claims of third persons are involved, no discovery proceedings in the probate court were necessary, but the proper action was the suit brought upon the bond in the circuit court. We are not persuaded that the Missouri cases relied on by appellants hold either directly or by implication that the cited discovery statutes divest the circuit court of jurisdiction over such a suit on guardian’s bond as is here presented. On the contrary, the case of Smith v. St. Louis Trust Company, 340 Mo. 979, 104 S.W.2d 341, decided since our former opinion, confirms our conclusion that the law of the case established in that opinion ought not to be departed from on this appeal. It is true that in the Smith case the plaintiff sued upon an administrator’s bond and here the bond in suit is that of guardian. But the right to sue on one or the other is substantially similar. Mo.Rev.St. 1929, Sec. 396, Mo.St.Ann. § 396, p. 253. The jurisdiction is also attacked by appellants on the ground that the form which the action took upon the pleadings and evidence required the court to pass upon adverse claims of title to lands in Iowa, and also to determine that defendants were liable for maladministration of assets of the ward in Iowa. It is argued that in reaching its judgment, the trial court exceeded its jurisdiction in those respects. The questions as raised will be referred to later, but we are convinced that the suit remained throughout an action on the guardian’s bond for money due on account of breaches of the bond by the guardian, and that the district court had jurisdiction to try it and to rendet such judgment as the facts warranted. Garton v. Botts, 73 Mo. 274; Scruggs v. Scruggs, C.C., 105 F. 28-30. Another attack closely related to the question of jurisdiction is directed to the refusal of the court to receive the testimony of the guardian to the effect that the plaintiff had waived the notice of final settlement required by statute and had ratified the judgment of final settlement entered in the probate court at the time he attained his majority. The question of the validity of the probate court judgment of settlement was necessarily involved in the first appeal of this case to the extent that the jurisdictional defects relied on were correctly alleged in the petition. By our decision we found the allegations sufficient to show want of jurisdiction in the probate court to adjudicate final settlement of the guardian’s account. The evidence on the trial sustained the allegations in the petition as to the failure to comply with the statutory requirements prerequisite to adjudication of final settlement of guardians’ accounts, but defendants offered to prove by testimony of the guardian that the ward had been informed in conversations had between them that the settlement was to be made on the date that it was entered and had been given a copy of the settlement, and that the ward was present in the court at the time of the adjudication, and that the ward assented to the settlement and the judgment. It is contended for the ward that the oral testimony was incompetent to establish jurisdiction in the probate court over the ward for the purpose of adjudicating upon the accounting with his guardian, and we think the district court’s rulings in his favor were proper. The record of the probate court and its judgment roll were the best evidence, and as that record disclosed that no jurisdiction over the ward had been obtained and that no appearance had been made on his behalf, the oral testimony was incompetent. Appellants urge that the decision of the Kansas City Court of Appeals in Anderson v. Middle States Utilities Company, 231 Mo.App. 129, 98 S.W.2d 163, compels a different conclusion. We do not so understand the decision. It was there held that a minor could on coming of age ratify voidable contracts made without his authority during his minority, but it was neither involved nor ruled that where a guardian has obtained a judgment of final settlement against his ward which is void for want of jurisdiction over the ward, the guardian may establish the validity of the judgment by his oral testimony of conversations had with the ward concerning the judgment. Counts I and III. The trial court found the facts upon the issues presented by the first and third counts of the petition as follows: “Findings of Fact. “As to Counts I and III. “Relator, Andrew Jean Stormfeltz, was born Feb. 29, 1904. He is the son of Luther J. and Lulu Stormfeltz, husband and wife. She was a daughter of T. W. Ballew. She died at the time of relator’s birth. He is the only child of Mr. and Mrs. Stormfeltz. "Thomas W. Ballew died, intestate, on Sept. 11, 1911, a citizen and resident of Princeton, Mercer County, Missouri. His principal business was and for many years had been the merchandising of lumber and building materials through a chain of lumber yards in northern Missouri and southern Iowa. Up to Feb. 15, 1908, he operated these yards under the name of Ballew Lumber Company as a trade name. On Feb. 15, 1908, he executed a bill of sale whereby he conveyed the yards thus operated to a Missouri corporation which he had formed on or about that date, under the corporate name of Ballew Lumber Company. The capital stock of the corporation was divided into 10,000 .shares. “At the time of Ballew’s death, he owned all the stock of the Ballew Lumber Company, although a qualifying share of the stock was outstanding in the name of each of the four persons who, together with himself, constituted the five members of its board of directors. At that time the Ballew Lumber Company owned retail lumber yards at the following places: Princeton, .Mo. Trenton, Mo. Gallatin, Mo. Jamesport, Mo. Plattsburg, Mo. Mound City, Mo. 'Maitland, Mo. Spickard, Mo. Marshall, Mo. Leon, Iowa. Seymour, Iowa. Bloomfield, Iowa. “Mr. Ballew also owned a series of lumber yards, or controlling interests-therein, which were called ‘blind’ yards. These blind yards were not operated in his-name, or in'the name.of his corporation, and were not corporate assets. They were the property of T. W. Ballew as an individual. Among these blind yards were the following: One at Brimson, Missouri, operated in the name of Brimson Lumber Company. Two yards operated under the name of Hubacher Lumber Company, one at Leon, Iowa, and the other at Mound City, Missouri. Another was at Seymour, Iowa, operated under the name of H. S. Eckels Lumber Company. “The reason the foregoing were called ‘blind’ yards .is that Mr. Ballew kept the fact that he was interested therein secret from the • public. At each of the points where they were operated, except Brimson, where a blind yard was operated, there was another yard of the Ballew Lumber Company. Ballew’s purpose in having blind yards at these points was to bluff out competitors by creating an appearance of the field being fully occupied with competitive yards. The apparent reason for operating the Brimson as a blind yard was to protect from competition at that point the yards of the Ballew Lumber Company at Trenton, Jamesport and Gallatin, Missouri, and the yards at Trenton and Gallatin, owned by Miner & Frees, who also owned an interest in the Brimson yard. “Mr. C. A. Hubacher, who lived in St. Joseph, Missouri, and whose name was used in the operation of the Leon and Mound City blind yards, had no financial investment therein. Ballew owned those yards in their entirety, and merely used the name of Hubacher in their operation. Mr. Hubacher visited the yards occasionally, for the purpose of keeping up the appearance of ownership, though he in reality had no such interest. The evidence does not show any other activity of Hubacher in connection with the Leon and Mound. City yards except as hereinafter stated. He died during the latter part of the year 1913, long before the commencement of this action; hence his testimony is not produced. “The Leon yard was acquired by Ballew and placed in the name of Hubacher Lumber Company during the early part of 1903. At that time D. D. Waldeck was purchasing agent for Ballew, stationed at Plattsburg, Missouri, and also was manager of two of Ballew’s lumber yards, one of which was at Plattsburg, and the other at Smithville. P. E. Brady was working at the Plattsburg yard for Mr. Ballew under Mr. Waldeck. Ballew asked Waldeck to recommend some young man for a lumber yard operator, and Waldeck recommended Brady, who went from Plattsburg to Leon as local manager of the blind yard there under Hubacher’s name. Mr. Brady held that position to the time of Ballew’s death, and thereafter until on or about July 2, 1912. “The blind yard at Seymour was operated under the name of ‘H. S. Eckels Lumber Company’. Mr. Eckels lived in Seymour. He and Ballew bought the yard on or about Feb. 12, 1907, to protect from competition the Ballew Lumber Company’s yard there. The purchase price was $14,-500.00. Of this, Ballew advanced $12,500.-00, and Eckels $2,000.00. To evidence the interest of Ballew in this yard, Eckels executed a note payable to Ballew for $12,500.00, dated Feb. 12, 1907. Shortly afterward, Ballew advanced an additional $1,-000.00 as working capital for the yard. To evidence this, Mr. Eckels executed another note, dated May 1, 1907, payable to a bank at Princeton then owned by Mr. Ballew, called the Ballew Bank. These notes never were endorsed, sold or transferred. Mr. Ballew owned them, and kept them among his papers, and at his death they passed into the hands of his administrators and became a part of his estate. “Ballew owned the above mentioned blind yards and interests therein at the time of his death, except that a short time previously he had sold the Mound City blind yard. After such sale, Mr. Hubacher, in whose name it had been operated, engaged in collecting its accounts with customers, and remitting such collections to Mr. Ballew. Hubacher was so doing at the time of Ballew’s death. He' continued as such collecting agent for Ballew’s administrators until the close of the administration, May 17, 1913. After the close of the administration of the Ballew estate, he continued in the service of the heirs as such collector until the time of his death a few months later. “Ballew left surviving him as his sole and only heirs at law his widow, Charity Ballew, and his two daughters, Mrs. Jessie B. Hyde and Winifred Harrison, and his grandson, Andrew Jean Stormfeltz, the relator. Each of said heirs inherited an undivided one-fourth interest in Mr. Ballew’s estate. “Sept. 28, 1911, the administration of the estate of Thomas W. Ballew was commenced in the probate court of Mercer County, Missouri, at Princeton, which court appointed Ben C. Hyde, husband of Jessie B. Hyde, and Luther J. Stormfeltz as administrators thereof. They were placed upon a salary, paid by the estate, of $250.00 per month to Mr. Hyde and $100.00 per month to Mr. Stormfeltz. Mr. Hyde lived in Kansas City, Missouri, where the administrators maintained an office, first in the Reliance Building, and then in the Waldheim Building, in conjunction with the Kansas City office of the Ballew Lumber Company. It was in this office that most of the business of the estate was transacted and conducted. “Stormfeltz had little to do with the administration. By common consent, Mr. Hyde, who was a highly capable business man in whom all the heirs and Stormfeltz placed implicit confidence, took active charge of the estate. He kept its books and accounts and conducted its affairs to the close of the administration on May 17, 1913. On that date, the administrators filed their final accofint. On the same day that the final account was filed, the probate court approved it and discharged the administrators. “The estate of Ballew was inventoried and appraised at $706,850.84. This inventory and appraisal included the capital stock of the Ballew Lumber Company and much other property of Mr. Ballew, but did not include the whole of his estate. It entirely omitted the blind lumber yards, and also omitted the two above mentioned Eckels notes of $12,500.00 and $1,000.00. Also, other assets of the estate of large value were omitted from the inventory. None of the property or funds so omitted from the inventory was administered. Jt was all distributed as unadministered assets- among the heirs by mutual consent of themselves and Stormfeltz, as guardian of relator. “The amount and character of the unadministered assets of the estate is only partially shown by the evidence. A full disclosure thereof is not necessary for the purposes of this action. The amount of all disbursements of the assets and funds derived from the sale of the assets, both administered and unadministered, not only during but also after the close of the administration, is fully shown. “The reason for the omission of certain assets of Ballew from the administration of his estate was that the heirs and Stormfeltz were in entire agreement among themselves at all times with respect thereto, and considered that no administration thereof was necessary or advantageous. Also, they considered that if the blind yards were inventoried the secrecy which Mr. Ballew always had maintained with respect to his interest therein or ownership thereof would be dispelled and the fact of such ownership become known to competitors and the trade. The heirs and Stormfeltz desired to continue such secrecy as a family tradition and also for what they regarded as the benefit of the yards owned by the Ballew Lumber Company. “The indebtedness of the Ballew estate, compared to its entire value, was small and insignificant. During the administration the administrators paid it in full out of the administered assets. This left no one but the heirs and Stormfeltz who could have complained of the fact that a substantial portion of the assets were omitted from the administration. “Neither the heirs nor Stormfeltz made such complaint. On the contrary they approved of and aided and encouraged the omission. By their mutual consent and agreement the unadministered assets were divided among and distributed to themselves, through the administrators acting as their trustees. For these distributions of unadministered assets the heirs and Stormfeltz as guardian for relator, executed receipts to the administrators, discharging them from all liability on account of such distributions. The distributions of unadministered assets and the receipts therefor, never were reported to or filed in the probate court. Its record is silent with respect thereto. “Luther J. Stormfeltz married Lulu Ballew, daughter of T. W. Ballew, sometime during the year 1902. At that time he was a blacksmith or blacksmith’s helper or apprentice. After the marriage he quit blacksmithing and attended a business college at Quincy, Illinois. His expenses there were paid by Mr. Ballew. He then returned to Princeton, Missouri, and entered the service of Mr. Ballew. He worked in Ballew’s lumber business on a salary from that time forward to the date of Ballew’s death. In that capacity his duties included the taking of annual inventories of the various lumber yards of Mr. Ballew and of the Ballew Lumber Company, and the making of annual financial statements or ‘recaps’ of the yards. “His son, Andrew Jean Stormfeltz, lived in Princeton with his grandparents, Mr. and Mrs. Ballew, from the time of his birth to and including the date of Mr. Ballew’s death. He was then a minor, aged seven and one-half years. “Nov. 8, 1911, Luther J. Stormfeltz, who was then a resident of Mercer County, Missouri, at Princeton, was by the probate court of that county appointed guardian and curator of the person and property of his son, Andrew Jean Stormfeltz, and required to give a guardian’s bond in the sum of $250,000.00. He gave such bond with the defendant, Title Guaranty and Surety Company as his surety thereon. In the application which he made' for said bond, Stormfeltz states that his financial worth is $7,000.00. ' “Nov. 23, 1911, the first distribution of the assets of the Ballew estate was made. It consisted of the stock of the Ballew Lumber Company, appraised in the Ballew estate at $50.00 per share. Of this stock 2,499 shares were allotted to each of the heirs. Each heir and Stormfeltz as guardian furnished a refunding bond of $125,000.00. “Dec. 15, 1911, or about that date, H. S. Eckels had on hand $9,200.00 that belonged to the Ballew estate. Of this sum, $8,000.00 was for money which Ballew, in June, 1911, had advanced to Eckels to pay for a lumber yard which Ballew, through and in the name of Eckels, had bought in Seymour, known as the ‘Johnson’- yard. The object of the purchase of the Johnson yard was to eliminate it as a competitor of the Eckels yard and also the yard of the T. W. Ballew Lumber Company (operated through Mr. Shanafelt as its manager) at that point. “Eckels had disposed of the lumber and building materials and other merchandise contained in the Johnson yard, and thereby accumulated the money necessary to repay the $8,000.00 advanced by Mr. Ballew. He also was ready to pay an additional $1,-200.00, on the share of T. W. Ballew in the profits of the Eckels yard for the year 1910. The amount of Ballew’s share of such profits for 1910 was $2,980.00. This is shown by the testimony of Mr. Eckels and also by a balance sheet or ‘recap’ of the Eckels yard, dated 12/20-1910, which was made by Luther Stormfeltz as an employee of Ballew, and which is in his handwriting, being Exhibit No. ‘O’ of the Eckels deposition, and also introduced in evidence as PX No. 44. This recap contains, among other things, an entry in the handwriting of Stormfeltz, as follows: “ ‘Profit to be paid T. W. Ballew, $2,-980.00’. “Prior to the death of Ballew, Eckels had paid to him $1,280.00 of this profit, and the payment of the additional $1,200.00 above mentioned would reduce the balance due to Ballew for the 1910 profits down to the sum of $500.00. “Mr. Eckels was imbued with the same idea of profound secrecy which possessed Ballew and his employees and heirs with respect to his ownership in the Eckels blind yard at Seymour. During all the years that Mr. Ballew and he had owned the yard, Mr. Eckels never had sent to Ballew any check or draft payable to him. This was to avoid attracting attention of outsiders through whose hands such paper would have to pass to the fact that Ballew was getting the lion’s share of the profits of the yard, and thus risk betrayal of the secret of Ballew’s ownership therein. Hence Eckels, in making such payments always had met Ballew or one of his employees, such as Hayes, Hollister or Stormfeltz, at Princeton or some other agreed rendezvous, and there Eckels would make the payments in cash or by other means that would not involve disclosure of Ballew’s name. “Hence when Eckels came to make the above mentioned $9,200.00 payment to Mr. Hyde as Ballew’s administrator, he wanted to do it in such a way as to keep the local bank in Seymour from knowing that Eckels was paying the money to Ballew’s estate, as it would know if Eckels were to purchase from it any draft payable to Ballew’s administrator. Consequently, he purchased from.the Seymour bank a $9,200.00 draft, made payable to a man named B. S. Parker, of Elgin, Illinois. He mailed this draft to Parker' with directions that Parker should use it to purchase a Chicago draft in Elgin of the same amount, payable to Mr. Hyde, and mail this new draft to Mr. Hyde in a letter enclosed by Eckels and addressed to Hyde, at the office of the administrators in Kansas City, Missouri. Parker did as Eckels requested. Mr. Hyde received from Parker the Eckels letter and $9,200.00 Chicago draft, and so acknowledged by a letter which he wrote Eckels Dec. 28, 1912, as follows: “‘Hannibal, Mo., 12/28-11. “ ‘Mr. H. S. Eckels, “ ‘Seymour, la. “ ‘We are in receipt of yours of the 20th inst. enclosing Chicago exchange for $9,-200.00 in payment of your note for $8,000.-00, and $1,200.00 on last year’s business. We are enclosing cancelled note herewith. “ ‘Yours very truly, “ ‘BCH/W (Signed) Ben C. Hyde.' “Mr. Hyde did not deposit this draft in any bank account kept by the administrators in their names as such, or in any other bank account that has been introduced in evidence, and what he did with the draft is not shown by the evidence. “Stormfeltz testifies that the $1,200.00 of 1910 Ballew profits contained in the $9,-200.00 draft, was paid to him by Ben Hyde. The Ballew heirs knew nothing about any such payment and Stormfeltz’s bank accounts do not show any such deposit. There is nothing in the record to corroborate his claim that any such payment by Mr. Hyde ever was made to him. “The administrators, on Jan. 15, 1912, opened an account in the Commerce Trust Company, Kansas City, Mo. This account was called by Mr. Hyde the ‘T. W. Ballew Account No. 2’. Also he called the blind yards ‘T. W. Ballew lumber yards No. 2’. This account was in the name of ‘Stormfeltz & Hyde’. “There was not at any time any joint business relationship between Stormfeltz and Hyde except as administrators of the Ballew estate, and there was no occasion for them to have a joint account except for the purpose of handling estate funds. They had two other bank accounts. Both were kept in their names as administrators. One was with the Commerce Trust Company and the other was in the Farmers Bank at Princeton. Those two accounts were kept in the name of ‘Hyde and Stormfeltz, Administrators’. All funds belonging to the administered assets of the Ballew estate were handled through these two accounts. “This Stormfeltz and Hyde account ran to June 12, 1913 when it was closed by transfer of the balance therein to a new account entitled, ‘Ballew, Harrison, Stormfeltz and Hyde.’ To this new account of B. H. S. & H. was also transferred the balance of funds in the hands of the administrators derived from administered Ballew assets, as shown by their final settlement in the probate court. “That was done after the probate record relating to administered assets had been closed and the administrators were no longer required to make public reports thereto. It was then possible to keep’ the affairs of the Ballew estate private. By thus placing the small undistributed amount of the administered funds, previously kept in the ñame of ‘Hyde and Stormfeltz, Administrators’, and the other funds, until then kept in the name of ‘Stormfeltz and Hyde’ in the Commerce, the two classes of bank accounts found one common resting place by being merged into a single bank account, in the Commerce, in the above mentioned account of ‘Ballew, Harrison, Stormfeltz and Hyde’. “Through the years that followed the opening of the B. H. S. & H. account, many deposits were made therein. These included all collections of assets that had not been reduced to money at the time of the close of the administration. Also, the proceeds of the sale of the scattered Ballew real estate and many odds and ends of the Ballew assets. From the B. H. S. & H. account, various disbursements were made, including six distributions paid to the heirs. The last of these was Jan. 18, 1926, and consisted of $10,000.00, or $2,500.00 to each heir, by which the B. H. S. & H. account was balanced and permanently closed. “Returning to the Stormfeltz and Hyde Account in the Commerce, the following is a complete copy thereof, except that the credits for interest paid on the deposits by the Commerce and credited monthly are here grouped into a single item of $32.-35, under date of 7/1-1913. “The precise source of the nine deposits in the Stormfeltz and Hyde account is-not shown, except in two instances, namely, the deposit of $500.00 on 1/24-1912, and the one of $5,538.83 on 1/24-1913. “The $500.00 deposit of 1/24-1912, was of money paid by H. S. Eckels. He came to Kansas City on that date, went to the office of the administrators, which then was in the Reliance Building, and there paid to-the administrators or one of them, in cash, the sum of $500.00 in full of the balance due to T. W. Ballew for the 1910 profits of the Eckels yard. This was money derived from an unadministered asset, namely the Eckels blind yard at Seymour. It was on the same day then deposited in the Stormfeltz and Hyde account. As the $500.00 came from an unadministered Ballew asset, the money itself was placed in the same category, and its collection by the administrators, though fully known to the heirs, never was reported to the probate court. “The other deposits of $5,538.83 on 1/24-1913, was money realized by the sale to Frank Harrison of the Ballew interest in the Miner & Frees blind yard at Brimson. Mr. Harrison had Stormfeltz and Hyde notify Miner & Frees by letter that Harrison had bought the Ballew interest in the Brim-son yard for $5,538.83. This notice was signed by them as administrators. Following is a copy thereof. “ ‘January 24, 1913. “ ‘Miner & Frees, “ ‘Bethany, Mo. “ ‘Gentlemen: “ ‘This is to inform you that on January 1, 1913, we sold our interest in the Brimson Lumber Company, amounting to $5,538.83, to Frank D. Harrison; thus transferring to Mr. Harrison all the interest of T. W. Ballew in the Brimson Lumber Company, as evidenced by a contract dated April 30, 1904, between T. W. Ballew, as first party, and Miner & Frees, as second party. “ ‘Yours very truly, “ ‘T. W. Ballew Estate, “ ‘By (Sighed) Ben C. Hyde, “ ‘(Signed) L. J. Stormfeltz, “ ‘Administrators.’ “The $5,538.83 that was thus paid by Harrison and deposited in the S. & H. account was not reported to the probate court. With respect thereto its records are silent. This $5,538.83, like the Eckels $500.00 constituted unadministered funds of the Ballew estate. “The fact that the $500.00 payment by Eckels on account of earnings of the blind yard at Seymour, 'and that the $5,538.83 realized by the sale of the Brimson blind yard to Harrison, were both from blind yards that were unadministered assets of the Ballew estate and that both sums were deposited in the S. & H. account, and that neither of these collections made by the administrators was reported to the probate court, are circumstances that indicate the purpose of the account. “As to the other seven deposits in the S. & H. account, although the exact source thereof is not shown, the evidence does show that none of them came from either of the -accounts of Stormfeltz and Hyde as administrators, and that they did not come from any administered assets of the Ballew estate. The fact that the deposits were made merely proves that Stormfeltz and Hyde kept unadministered cash resources of the estate somewhere not revealed by the evidence, on which they drew to supply the funds deposited in the S. & H. account. “Mr. Hyde is physically and mentally incompetent, so that his testimony is not produced on this or any other point. The only other living person who must have known where these funds were kept is the defendant Stormfeltz. He testified at great length, first by depositions taken before the trial, and again orally at the trial. Yet he did not reveal the source of these deposits, nor [giving] any adequate reason for not so doing. Although he jointly with Mr. Hyde signed check after check against the S. & H. account, and although more than $10,000.00 of the $15,126.62 deposited in the account was paid to him, still he tells this court that he remembers nothing whatever about the account. “The character of the account is further shown by the purpose of the checks drawn against it which were either endorsed to Stormfeltz or in which he is named as payee, and by the purpose of other checks, drawn against the account, all of which checks are hereinafter more particularly described. “All deposits, in the Stormfeltz and Hyde account, and all withdrawals therefrom, were of unadministered Ballew assets. The sole purpose of. the Stormfeltz and Hyde account was to handle funds that belonged to the unadministered assets of the Ballew estate. “January 27, 1912, Stormfeltz as guardian, filed in the probate court an inventory of relator’s estate. Therein he recites that he has received 2,499 shares of the stock of the Ballew Lumber Company for his ward. On Feb. 16, 1912, appointees of the probate court appraised this stock at $25.00 per share, or $62,475.00. These appraisers were J. E. Fuller, O. J. Somerville, and F. A. Lambert. Mr. Fuller was then and is now the president of the Farmers Bank of Princeton, and a brother-in-law of Stormfeltz, whose sister he married. Mr. Somerville was a Ballew employee, and a close friend of Stormfeltz. Mr. Lambert was clerk of the probate court. “The Missouri statute, R.S.1929, Sec. 399, Mo.St.Ann. § 399, p. 255, provides that when a guardian receives any personal estate from an administrator that already has been appraised, a second appraisal 'thereof by the guardian is dispensed with, and the statute requires him to state in his inventory the original appraisement and provides that he shall be held to account accordingly. In this instance, Stormfeltz, in his inventory, was silent as to the fact that the administrators had appraised the stock at $50.00 per share, or $124,950.00. The second appraisal was not only superfluous, but was incorrect. It was below the true value of the stock, which was worth much more than the $62,475.00 thereby shown. “March 16, 1912, distribution No. 2 of the Ballew estate was made. It consisted of money and personal property, valued in all at $160,000.00, which the administrators divided among and paid to the heirs. The part that went to Mrs. Hyde and Mrs. Ballew consisted of school bonds of the city of St. Joseph and other securities worth $80,000.00 or $40,000.00 to each. As to Mrs. Harrison, the consideration that moved to her was the cancellation of the unpaid balance on certain notes executed prior to the death of Mr. Ballew by herself and her husband to him, as the purchase price of the ‘Monarch’, a department store which Ballew had established in Princeton, Missouri, and which she and her husband purchased from him and owned and were operating it at the time of Mr. Ballew’s death. The consideration that moved to Stormfeltz was cash in the sum of $40,000.-00. This money he deposited to his credit in the Commerce Trust Company, kept in his name as guardian. Each of the adult heirs and Stormfeltz as guardian agreed to the above distribution and executed to the administrators a separate $40,000.00 receipt for the same. “The $160,000.00 in money and money’s worth thus distributed was from the administered assets of the Ballew estate, and was so reported by the administrators to the probate court. Also, Stormfeltz in his first annual report as guardian charged himself with the $40,000.00 thereof that was paid to him. “April 12, 1912, Stormfeltz filed in the probate court a petition for leave to invest $40,000.00 of his ward’s funds in additional Ballew Lumber Company stock. The court sustained this petition and authorized Stormfeltz to buy the additional stock ‘at book value’, but no such transaction ever was consummated. “May 8, 1912, Mrs. Jessie B. Hyde sold her 2,499 shares of Ballew Lumber stock, plus one additional share that had been issued to her as a director of the lumber company, making 2,500 shares in all, to Charity Ballew and Winifred Harrison for $84,827.82. This consideration was paid in •cash, school bonds and a secured note, signed by Mrs. Ballew and Mrs. Harrison, which note was paid in full. “June 25, 1912, Stormfeltz, as guardian, filed in the probate court- a statement reciting that relator’s 2,499 shares of Ballew Lumber Company stock was worth $62,475.00, but was not sufficient to give him control of the investment. That he can exchange it for the merchandise and real estate of the Princeton and Jamesport yards of the Ballew Company, plus a cash difference. That he is conversant with the ' retail lumber business and that such trade would enable him by personal management greatly to increase the ward’s income. “Although in this petition he asked no order of any description, and does not expressly state that he intends to engage in business with his ward’s funds if permitted so to do, yet that is the clear implication. The Princeton and Jamesport yards.did not belong to relator’s estate but belonged to the Ballew Lumber Company, of which the probate court had no jurisdiction. Nevertheless, the court, of which Hadley J. Alley was judge, proceeded as though the opposite were true. Of his own initiative, so far as shown by the record, the court appointed three Davies County appraisers to value the Jamesport yard realty, and three Mercer County appraisers to value the Princeton yard realty. “Both sets of appraisers apparently were on hand, and ready to proceed. On the same day they were appointed, they qualified and appraised the Jamesport realty at $4,717.36, and the Princeton at $6,065.45. Those were the exact book values, as shown by the next preceding James-port yard recap and the Jamesport yard journal, dated 2/12-1912, and by the next preceding Princeton yard recap and Princeton yard journal dated 2/28-1912, plus a 90(S Princeton yard item entered in said journal on May 11, 1912. This cannot be reasonably explained on the theory of coincidence, and the clear inference is that the appraisers had been furnished the book values and were waiting to adopt them as soon as they could be appointed, and had come into court to be appointed and report the book value as their own valuation. “As to the lumber yards proper, exclusive of the real estate, no appraisal was made, and the court heard no testimony with respect thereto. This is shown by the defendant’s evidence, namely, the testimony of Hadley J. Alley, whom defendants produced at the trial as their witness. He testified that he heard no evidence as to the value of the yards, and that all he had as a basis for the values at which he authorized the guardian to accept the yards was conversations he had with persons out on the street. “Nevertheless, the court entered an order which recited that it had been made to appear by competent evidence that the 2,499 shares of relator’s stock had an actual value of $62,475.00, and authorized the guardian to exchange it for the Princeton yard at $28,850.53, plus the yard real estate at $6,-065.45, a total of $34,915.98, and the James-port yard at $16,884.66, plus the yard realty at $4,717.36, a total of $21,602.02, and $5,-957.00 in cash, and that the guardian should transfer the stock to the Ballew Lumber Company or its nominee on receiving the yards and cash aforesaid. “The fact is that the book value of the Princeton yard, including realty, was $28,-941.83, and of the Jamesport yard, including' realty, $15,427.89, and the valuations thereof stated in the foregoing order were inflated above book value by approximately the book value of the real estate. This fact was admitted by defendants in open court at the trial. “The book value of the Princeton and Jamesport yards must, in the absence of any credible evidence to the contrary,’ and there is none, be taken as their actual value for the purposes of this case. As to the value of the other Ballew Lumber Company yards, exclusive of the Jamesport and the Princeton, it is shown by the evidence to have exceeded the book value by about $50,000.00, and to have actually sold for that sum above such .book value, after Stormfeltz had disposed of his ward’s interest therein. As to the value of relator’s stock, it was more than its book value, which was $81,343.99. “If the foregoing order of 6/25-1912, had been carried out, the book values which Stormfeltz would have received are as follows : Princeton ............................ $28,941.83 Jamesport .................................... 15,427.89 Boot money ................................ 5,957.00 Total ......................................$50,326.72 For this he would have parted with stock worth at book value $81,343.99, so that relator’s estate would have lost at a minimum the difference between $50,326.72 and $81,-343.99, or $31,017.27. “The fact that the probate court had -no jurisdiction of the Ballew Lumber Company prevented it from requiring the company to make the trade, and the court made no attempt to do so in the above order. Such order did not and could not amount to anything more than an authorization to Stormfeltz to make the trade therein mentioned, if the Ballew Lumber Company saw fit to enter into it with Stormfeltz. “Stormfeltz testified that the amount of boot money that was paid to him was that which was specified in the probate order of 5/25-1912, namely $5,957.00. The bank account of the Ballew Lumber Company has been introduced in evidence. It shows two things. One is that the Ballew Company had no money to its credit at the time when Stormfeltz says it issued to him the $5,957.-00 check, and that the account already was overdrawn. The other is that as the bank then kept customers’ accounts it entered the name of the payee of each check that was paid. These entries do not show any such check to Stormfeltz. “Stormfeltz further says that this payment was made to him by a check of the Ballew Lumber Company and that he deposited it in some of his bank accounts. But his bank accounts as guardian show positively that no such sum as $5,957.00 was deposited therein, and his personal bank accounts contain no deposits which, under the evidence, can be attributed to a deposit of that sum. His testimony that such payment was made to him is wholly uncorroborated, and not credible. “No order confirming any proceedings purporting to have been made pursuant to the order of 6/25-1912, ever was asked of or made by the probate court. Neither Stormfeltz nor anyone else reported to the probate court that any such trade had occurred. No payment was made and no title passed to anyone in reliance on said order. To relator’s good fortune, it never was carried out. Hence there is no occasion to set it aside, although defendant’s evidence would justify this court in so doing if any necessity therefor appeared. “Stormfeltz had no intention of exchanging the stock at less than book value for two yards at more than book value. A trade was actually in contemplation, but of very different character. ‘The actual trade, and not the one authorized by the order of 6/25-1912, was made only ten days later, and the order was only one of several steps take preparatory thereto. “The real trade had been fully discussed by Stormfeltz with Mr. Hyde, Frank Harrison and Mrs. Ballew. Also, Mr. Hyde and Mr. Harrison had talked it over with their respective wives. It was known to be agreeable to all concerned before the probate court proceedings were commenced. Those proceedings had no purpose other than to obtain the court’s authority to trade off relator’s stock, and create a record that by its language would cause an impression on the public, without actually so stating, that Stormfeltz was trading relator’s stock for the Jamesport and Princeton yards and $5,957.00 in money and at the same time withhold from the record the fact that the actual consideration to be received therefor was much more than the two yards aforesaid and $5,957.00. “The actual consideration for the intended trade was not only the Jamesport and Princeton yards, but also $6,647.78, and the blind yard at Leon and the Ballew interest in the blind yard at Seymour, the last two being a part of the property owned by but which had been intentionally omitted from the inventory of the Ballew Estate. “Publicity of such ownership by the Ballew estate of the two blind yards would have raised embarrassing questions as. to why they had been omitted from its inventory in the Mercer County probate court, and might force commencement of an ancillary Iowa administration at Leon or Seymour, with its attendant trouble and expense, and certainly would destroy the secrecy of Ballew’s ownership, which he had carefully guarded for years. The same policy had been adopted by his employees, heirs, Stormfeltz and Eckels. All considered it essential to avoid destructive competition and conseqüent diminution in the value of the Ballew Company and the Hubacher yards at Leon and the Ballew Company and Eckels yards at Seymour. Imbued with this phobia, they all were equally anxious to do anything necessary to maintain the secrecy. “Under date of June 27, 1912, in furtherance of the prospective trade, the Ballew Lumber Company, by D. D. Waldeck as vice president, and Frank Harrison as secretary, executed two bills of sale to relator, one for the Jamesport yard and the other for the Princeton yard. These are upon printed forms filled out at the instance of Ben C. Hyde by his brother, Ed. C. Hyde. They are in the handwriting of the latter, except the consideration named therein. That was not inserted until afterward. Although the exact time when it was done is not shown by the evidence it probably was not until on or after July 5, 1912. The amount so inserted was that mentioned in the aforesaid probate court order, namely $28,850.53 for the Princeton yard, and $16,884.66 for the Jamesport yard. “Under a date the same as the bills of sale, deeds also were executed by the lumber ' company to relator for the Princeton and Jamesport real estate. The lumber company’s name was signed to the Princeton deed by the same persons who signed it to the bills of sale. The company’s name to the Jamesport deed was signed by Charity Ballew as president and attested by Mr. Harrison as secretary. In these deeds the named consideration was the same as stated in the probate order, namely $6,065.-45 in the Princeton deed, and $4,717.36 in the Jamesport deed. The original deeds were not introduced, but defendant introduced certified typewritten copies of the record thereof. Such copies of course do not show whether the consideration stated in the originals was in handwriting different from the rest of the instruments, as is the case with the bills of sale, and it does not appear whether the consideration was originally left blank in the deeds the same as it was left blank in the bills of sale, and filled in later. “The Princeton deed was not filed for record until July 8, 1912, and the James-port deed was not filed for record until July 10, 1912. The bills of sale never were recorded. The evidence does not show who held these bills of sale and deeds during the interval between the date of their execution and the date the deeds were recorded, but the fact is that they were not delivered to Stormfeltz until on or after July 5, 1912. “July 2, 1912, Ben Hyde went to 'St. Joseph, the residence of Hubacher, who then was ill. There Hubacher executed a bill of sale for the Leon yard to ‘P. E. Brady and Company’. Mr. P. E. Brady was and ever since 1903 had been the local manager of the Leon yard. This bill of sale was witnessed by Miss Edith Hubacher and by Ben C. Hyde. The name of Stormfeltz does not appear on this instrument, although he says that he went with Mr. Hyde to St. Joseph and that he was present when it was executed. “The consideration named in this Hubacher bill of sale is $12,739.44. That is the amount of the next preceding inventory of the Leon yard as of 12/18-1911. The fact is that Hubacher did not receive that sum or any other for its execution. He did not own the Leon yard or any interest therein, and signed the bill of sale merely for accommodation. Stormfeltz agrees with plaintiffs on that point, but he further says that in 1905 or 1906 he had a transaction with Hubacher whereby Hubacher had sold and conveyed the Leon yard by bill of sale drafted by Vinton Pike, a well known lawyer of St. Joseph, now deceased, to Stormfeltz who, ever since such transaction,' had owned the Leon yard. That he had kept such alleged ownership secret from everyone, including P. E. Brady, the local manager of the yard. He says he had lost the Vinton Pike bill of sale that Hubacher originally executed. That it was he, Stormfeltz, and not Mr. Hyde, who had procured Hubacher to execute the new bill of sale on 6/2-1912, and that this new bill of sale was to take the place of the old one, to Stormfeltz. But the new bill of sale contains no such recitation. Instead of stating that it is executed in consideration of an old lost bill of sale by Hubacher to Stormfeltz it does not mention Stormfeltz from beginning to end. It runs to a different grantee and it names as its consideration, not the value which according to Stormfeltz, he paid for the yard in 1906, but the very latest ascertained book value of the yard as of 12/18-1911. “On the same date, July 2, 1912, P. E. Brady, local manager of the Leon yard ever since 1903, came to Kansas City at the request of Stormfeltz, and in the office of the administrators in the Waldheim Building he and Stormfeltz entered into a written contract of a partnership under the name and style of ‘P. E. Brady and Company’ to conduct the Leon yard. This contract recites that the $12,739.44 inventory of the Leon yard as of 12/18-1911, is correct. Also that the interest of Stormfeltz in the yard is $11,739.44 and that of Brady $1,000.00 a total of $12,739.44. Also, that Brady would manage the yard and received as salary for his managerial services the sum of $900.00 per annum. “On that occasion Brady paid to Stormfeltz, in money and notes, $1,000.00 for the interest which the partnership contract recites is vested in Brady. He thereby real-' ized a long-cherished ambition to acquire an interest in the yard for himself. Brady previously had offered to make such purchase from Hubacher, not knowing that Hubacher owned no interest in the yard. Hubacher had not responded to Brady’s proposal, but had not explained his silence. Hence when Brady saw what appeared to be an opportunity to buy such interest from Stormfeltz and at the same time save his job as local yard manager, he went into the transaction, though up to that moment he did not know and never had heard of Stormfeltz having any interest whatever in the Leon yard. “On the same date, July 2, 1912, H. S. Eckels, at the request of Stormfeltz, came from Leon, Iowa, and went to the office of the Ballew administrators, Waldheim Building, Kansas City, Mo., where he entered into negotiations that resulted in a contract of partnership of that date with Stormfeltz to operate the Seymour blind yard in Eckels’ name. This contract provides that Eckels is to manage the yard at an annual salary of $900.00, plus a $300.-00 year-end bonus if the yard makes over 8% on the investment. The contract also recites that the interest of Stormfeltz therein is $18,087.05, and the interest of Eckels, $3,415.37. It says ‘both interests based on a statement of Jan. 1, 1912’, which statement is set forth in the contract, fully itemized. “The financial statement thus quoted in this partnership contract is, with one exception, identical with the annual inventory or ‘recap’ of the yard as written by Mr. Hyde in Kansas City on 1/1-1912. At the desk while Hyde wrote the recap was Mr. Eckels, to whom Hyde gave a duplicate. The one difference between the recap and the financial statement in the Stormfeltz-Eckels contract is that Mr. Hyde placed in the recap the name of T. W. Ballew as owner with Eckels and the name of Stormfeltz does not appear anywhere in the recap; whereas, in the contract the name of Stormfeltz is inserted wherever the name of Ballew appeared in the recap and in the contract the name of Ballew does not appear. “The fact that after the inventory of 1/1-1912, was written, Eckels had paid the $500.00 balance of Ballew’s interest in the 1910 profits, so that the $18,087.05 interest of Ballew was reduced to $17,587.05, was overlooked six months later when the Eckels-Stormfeltz contract was drawn. However, Stormfeltz afterward discovered this discrepancy and corrected it in the next recap made by him of the Seymour yard on 12/31-1912, wherein Stormfeltz adjusted the investment account of the Seymour yard downward to allow for the $500.00 payment. “At the time of the execution of the foregoing Eckels-Stormfeltz contract of 7/2-1912, Stormfeltz wrote ‘Paid’ across the face of the two Eckels notes, one for $12,500.00, dated 2/16-1907, payable to T. W. Ballew, and the other for $1,000.00 dated 4/26-1907, payable to T. W. Ballew’s bank, and delivered them to Eckels. As heretofore stated, neither of these notes was endorsed by the payee. At the time Stormfeltz cancelled and surrendered them to Eckels, they belonged to the unadministered assets of the estate of T. W. Ballew. They did not represent any indebtedness of Eckels to Ballew or his estate. They were mere tokens of Ballew’s ownership in the yard, but Eckels was .glad to see them can-celled. No other consideration moved, from Stormfeltz to Eckels for the partnership contract. The cancellation and surrender of the notes to Eckels on 7/2-1912, was done by Stormfeltz as an administrator of the Ballew estate, acting as trustee for the heirs, and not in his personal capacity. Although this fact was not explained to Eckels, it was known to and understood by Mr. Hyde and the Ballew heirs. “Up to the time Stormfeltz made the partnership contract of 7/2-1912, Eckels never had heard of Stormfeltz owning or claiming to own any interest in the Eckels yard. In fact, he did not expressly claim such ownership on that occasion. But Eckels knew of Stormfeltz’ connection with the Ballew family and that he was one of the Ballew administrators. When Stormfeltz produced the two notes above mentioned and proposed to cancel and deliver them to Eckels, the latter assumed, although he did not understand just what the conditions were, that it was all right to enter into the partnership contract with Stormfeltz. It was a contract whereby he had nothing to lose. He wanted to stay with the yard, and not see the controlling interest therein pass into the hands of a stranger who would have no use for his services, and he supposed that under the partnership contract the matter would somehow work out satisfactorily. “The foregoing expectation of Eckels was fulfilled. The partnership between him and Stormfeltz continued until after relator attained majority. Then Eckels bought Stormfeltz out, in 1925. During that entire period Stormfeltz never allowed his name to be made public as owner of any interest in the Seymour yard. It was operated solely in the name of Eckels. The fact that Eckels was not the sole owner was kept a secret after the partnership contract was made as closely as it had been ever since Ballew and Eckels first acquired the yard in 1907. “Likewise, as to the Leon yard, Stormfeltz never allowed his name to be made public in connection therewith. After the partnership contract between him and Brady was made on 7/2-1912, it was operated solely under the name of ‘P. E. Brady and Company’ until some time during the year 1928, when Brady bought out Stormfeltz and thereby acquired for himself the entire interest therein. “Stormfeltz testified that Ballew, at the time of his death, had no interest in the Eckels yard. That he acquired all the interest of Ballew in the Eckels yard by a transaction with Ballew about the year 1908, and had owned such interest ever since. That so long as Ballew lived, no one except himself and Ballew, not even Eckels himself, knew of his ownership. That after Ballew’s death, he had kept it secret except that he had revealed it to Mr. Hyde on an occasion in 1912 when they were in Excelsior Springs. However, there is no credible evidence of him exercising any of the rights of such ownership until after his transaction with Eckels on 7/2-1912, and in his deposition taken by plaintiffs on 5/23-1930, Stormfeltz testified that he did not then own and that he never had owned any interest in the Eckels yard. “Until after this suit was brought the Ballew heirs knew nothing of Stormfeltz’ claim that Stormfeltz, before Ballew’s death had purchased the Leon yard from Hubacher, nor of any claim by Stormfeltz that he had purchased Ballew’s interest in the Seymour yard, and at the trial relator lodged timely objections as against the competency of Stormfeltz to testify to having had any such transactions with Hubacher and Ballew, on the ground that both of them were dead. “On 7/5-1912, a meeting of the Ballew heirs and Stormfeltz was held at the office of the administrators in the Waldheim Building, Kansas City, Mo. The purpose was to close the last above mentioned trade with Stormfeltz, for- which the probate court order of 6/25, the conveyances of 6/27, and the proceedings of 7/2-1912, were preparatory. “The meeting was called by Ben Hyde. He suffered a stroke in 1927, since which time he has been unable to .speak or write, mentally incompetent, and under guardianship. Naturally, he was not and could not be produced as a witness at the trial of this case, and the court does not have the benefit of his testimony. The facts herein found with reference to1 the trade are from the records that he made, and the testimony of the others who were present at the meeting. “Those present at the meeting of 7/5-1912, in addition to Mr. Hyde, were Mr. Stormfeltz, Mrs. Charity Ballew, Mrs. Jessie B. Hyde, and Mrs. Winifred Harrisou and husband, Frank D. Harrison. The office was the same as that of the Ballew Lumber Company, of which D. D. Waldeck was vice president, and although he took no part in the meeting, he was well acquainted with the Ballew family, knew what the meeting was for, and was casually present part of the time and heard much of what was said. “At the meeting, Stormfeltz stated to the heirs his proposal. It was to exchange relator’s lumber stock, at its book value, for specific lumber yards at their book value, namely, the Princeton, Jamesport and Leon yards, and the interest owned by the Ballew estate in the Eckels yard at Seymour, plus the difference in cash. “For convenience and brevity in the following statements of these findings, the small interest of Eckels in the Seymour yard will be temporarily ignored, and the yard will be mentioned as though owned in its entirety by the Ballew estate, the same as was the Leon yard. “Mr. Hyde stated that his wife, who on 5/8-1912, sold her Ballew Lumber Company stock, did not want to acquire any interest in the stock of relator, but that she was willing for the trade to be consummated as between Stormfeltz on the one hand and Mrs. Ballew and Mrs. Harrison on the other. “Mrs. Ballew and Mrs. Harrison said that they already had bought Mrs. Hyde’s stock, and that they were willing to take over relator’s stock, thereby acquiring the entire issue, and that the trade proposed by Stormfeltz was agreeable to them. “The book value of the stock was adjusted to the date of the meeting, July 5, 1912, at $81,343.99. The other book values were, Princeton yard, $28,941.83, the Jamesport yard, $15,427.89, the Leon yard, $12,739.44, the Seymour yard, $17,587.05. “In the trade, relator was to part with a 100% interest in his lumber stock and in return therefor he was to receive a 100% interest in the four