Lucks v. Northwestern Savings Bank

• Decision Date: 03 May 1910
• Parties: LUCKS v. NORTHWESTERN SAVINGS BANK.
• Court: Missouri Court of Appeals

128 S.W. 19

148 Mo. App. 376

LUCKS v. NORTHWESTERN SAVINGS BANK.

St. Louis Court of Appeals. Missouri.

May 3, 1910.

1. TRIAL (§ 253) — INSTRUCTIONS—IGNORING FACTS.

An instruction which ignores a concession of fact made by the party requesting it is properly refused.

2. EVIDENCE (§ 354) — ADMISSIONS — PASSBOOK.

Where an entry in a bank depositor's passbook was canceled by the bank on first detecting it, and the evidence showed that it was erroneous, it could not be regarded as an admission by the bank.

3. BANKS AND BANKING (§ 151)—ACCOUNTS WITH DEPOSITOR—ENTRIES IN PASSBOOK— CONCLUSIVENESS.

Entries in a bank depositor's passbook made by the bank's officers make a prima facie case apart from any positive testimony in corroboration.

4. TRIAL (§ 244) — INSTRUCTIONS — COMMENT ON EVIDENCE.

Where, in an action against a bank for a deposit, it appeared that the bank canceled its entry in the depositor's passbook on first detecting it and offered testimony to prove that the entry was erroneous, an instruction that the entries made by the bank on the depositor's passbook were admissions by the bank that the amounts so entered were deposited by the depositor was erroneous, because giving overemphasis and weight to the entry.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Herman Lucks against the Northwestern Savings Bank. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant. R. F. Walker and Edward A. Raithel, for respondent.

GOODE, J.

This plaintiff asked and obtained a judgment for $197.10 against the defendant bank as being the balance due him on his account. Said action was filed August 14, 1906. Defendant admitted owing only 75 cents, thereby putting in issue $196.35 of the amount. Plaintiff testified he had deposited said sum of $196.35 in the bank on May 14th, and an entry on his passbook made by the teller of the bank, as the teller admitted on the witness stand, showed a deposit to plaintiff's credit on said day, either of $196.35 or $190.35. There was a controversy as to whether the third figure of the entry was "6" or "0." However, the bank denied plaintiff made a deposit of either $196.35 or $190.35 on May 14, 1906, and introduced testimony to prove he did not deposit either sum. The bank's contention was that a man named Vossmeyer deposited $190.35 on May 14th, and this deposit by Vossmeyer was, by mistake, entered as a credit on plaintiff's passbook. After May 14th plaintiff did not hand in his passbook to the bank to be balanced until the middle of July, when, on comparing said book with his account as shown on the books of the bank, no entry corresponding to the deposit of May 14th was shown on the bank's books, and hence the teller drew a line through said entry on the passbook before returning the latter to plaintiff, who, on seeing the erasure, protested against it. There was further testimony for the bank that no deposit of $196.35 was made by any one on the day in question, and that only one person (Vossmeyer) made a deposit of the other amount. It appears from the record the attorney for the bank, during the trial, admitted plaintiff had made a deposit of some amount not stated or known, on said day. This admission was made in explanation of how the teller came to make an entry, though an erroneous one, in plaintiff's passbook.

Without going further into the details or stating the various deposits made by plaintiff and checks drawn by him from March 19, 1906, to July 27, 1906, the date of the last transaction shown, we will state the effect of the evidence and the admissions of defendant's counsel, which is this: If plaintiff deposited $196.35 on May 14th, then the bank owed him said amount, plus 75 cents, or the amount he sued for, $197.10. If he made a deposit of $190.35, then the bank owed him that, plus 75 cents, or $191.10. If he did not deposit either of those sums, nevertheless the bank must have owed him more than 75 cents, the amount admitted in its answer to be shown by its books; for the books showed no deposit on May 14th, and it is conceded he made a deposit on that...