St. Charles Savings Bank v. Denker

Decision Date30 July 1918
PartiesST. CHARLES SAVINGS BANK v. EDWIN B. DENKER et al., Appellants
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

B. H Dyer and Jones, Hocker, Sullivan & Angert for appellants.

(1) The deposition of Bruere was properly admissible in evidence. (a) As a deposition, notwithstanding the lack of cross-examination and signature. Scott v. McCann, 76 Md. 47; Fuller v. Price, 4 Gray (Mass.) 343. (b) As the properly proven testimony of the witness concerning the litigation. 16 Cyc. 1099. (c) As the declarations of the bank by its president against interest. Malack v. Railway Co., 57 Mo. 21; Roberts v. Railway Co., 153 Mo.App. 695. (d) No exceptions having been filed by respondent to the ruling of the referee in admitting the same, the question cannot be re-examined. R. S. 1909, sec 2012; Berry v. Rood, 209 Mo. 673; Anderson v. Caldwell, 242 Mo. 206; Buxton v. Debrecht, 95 Mo.App. 604. (2) The obligation of the appellant sureties on the bond in suit was procured by respondent by fraudulent concealment of prior misconduct of the cashier and is thereby avoided. Third National Bank v. Owen, 101 Mo. 580; Harrison v. Insurance Co., 8 Mo.App. 41. (3) The so-called Mispagel "confession" was inadmissible against the appellant sureties, and constituted, confessedly, the only evidence upon which to base a judgment against the appellant sureties on the Baird drafts, or any of them. State to use v. Bird, 22 Mo. 474; Father Matthew Society v. Fitzwilliam, 12 Mo.App. 449, 84 Mo. 406; Stetson v. Bank of New Orleans, 2 Ohio St. 167; White v. German National Bank, 9 Heisk (56 Tenn.) 475; Knott v. Peterson, 125 Iowa 404; Weider v. Surety Co., 86 N.Y.S. 105; Lee v. Brown, 21 Kan. 458; Hatch v. Elkins, 65 N.Y. 499; Underhill on Evidence, sec. 73; Cook Co. Liquor Co. v. Brown, 122 P. 168 (Ok.) ; Blair v. Ins. Co., 10 Mo. 567.

Charles W. Bates, Theodore C. Bruere, David Barron and C. W. Wilson for respondent.

(1) The statement or so-called deposition of Theodore Bruere, Sr., was improperly admitted, and should not be considered by the court. R. S. 1909, sec. 1996; State ex rel. v. Ice Co., 246 Mo. 202; Reed v. Young, 248 Mo. 612; Dannerfelser v. Weigel, 27 Mo. 45; Attwell v. Lynch, 39 Mo. 519; Chamberlayne on Evidence, sec. 2713; Pringle v. Pringle, 59 Pa. St. 281; State v. Grant, 79 Mo. 137; People v. Cole, 43 N.Y. 508; Sperry v. Moore's Estate, 42 Mich. 353; Bangs Milling Co. v. Burns, 152 Mo. 380; Byrne v. Feed Co., 143 Mo.App. 85; Vohs v. Shorthill, 124 Iowa 471; Goetz v. Bank of Kansas City, 119 U.S. 557; Rogers v. McCune, 19 Mo. 569; Calson v. Ebert, 52 Mo. 270; King v. Insurance Co., 101 Mo.App. 172; McDermott v. Railway, 73 Mo. 518-519; Scovell v. Clasner, 79 Mo. 455-456; Redmond v. Railroad, 185 Mo. 12. (2) There was no fraudulent concealment of any facts from the sureties, and they are not discharged from liability on the bond in suit. Hartford Ins. Co. v. Casey, 191 S.W. 1072; State to Use v. Atherton, 40 Mo. 218; Third National Bank v. Owen, 101 Mo. 558; Harrison v. Ins. Co., 8 Mo.App. 37; Farmers Bank v. Ogden, 192 Mo.App. 243; Bostwick v. Van Voorhis, 91 N.Y. 353; Atlas Bank v. Brownell, 9 R. I., 173; Hebert v. Lee, 12 L. R. A. (N. S.) 247 (Tenn.); Palatine Ins. Co. v. Crittenden, 18 Mont. 413; Wright v. Brewing Co., 103 Md. 377; Ida Co. Sav. Bk. v. Seidensteiner, 92 N.W. 862; Magee v. Manhattan Life Ins. Co., 92 U.S. 99; Chew v. Ellingwood, 86 Mo. 271; Lake v. Thomas, 84 Md. 608; Home Ins. Co. v. Holway, 55 Iowa 571; Roper v. Trustees, 91 Ill. 518; Watertown Sav. Bank v. Mattoon, 78 Conn. 338; Railroad Co. v. Schafer, 59 Pa. St. 357; Aetna Ins. Co. v. Mabbett, 18 Wis. 667; Screwmans Ben. Assn. v. Smith, 70 Tex. 168; Charlotte Railroad v. Gow, 59 Ga. 685. (3) The true rule to apply in this case is the rule which applies in cases where the Government is obligee in the bond. Watertown Sav. Bk. v. Mattoon, 78 Conn. 338; Chew v. Ellingwood, 86 Mo. 260; State to use v. Atherton, 40 Mo. 216; Railroad v. Schafer, 59 Pa. St. 357; Lake v. Thomas, 89 Md. 608; R. S. 1909, sec. 1112. (4) The Mispagel statement was properly received in evidence. Savings Assn. v. Edwards, 47 Mo. 449; Bricer v. Stone, 47 Mo.App. 535; Benevolent Society v. Fitzwilliams, 12 Mo.App. 448; Benevolent Society v. Fitzwilliams, 84 Mo. 406; Singer Mfg. Co. v. Reynolds, 168 Mass. 591.

WHITE, C. Roy, C., concurs. Faris, J., concurs in result.

OPINION

WHITE, C.

The plaintiff bank brought this suit against the defendants as sureties on the bond of A. F. Mispagel, plaintiff's cashier. The petition, after alleging the employment of Mispagel as cashier and setting out the undertaking, alleged that Mispagel had misappropriated and neglected to account for large sums of money, amounting to $ 36.275.05; and that at divers times during the period covered by the bond said Mispagel had made false entries in the books of the plaintiff bank for the purpose of concealing the misappropriations -- entries which indicated money received by plaintiff bank which was never received, and entries showing money paid out which never was paid out -- and also that he had failed to enter upon the books of the bank large sums of money that were received and paid out by the bank. A detailed, itemized statement of the several sums lost to the bank by reason of the misconduct of Mispagel is set forth in the petition.

The bond on which the suit was brought was in the sum of fifty thousand dollars, and conditioned that Mispagel should well and faithfully perform all the duties of such cashier, either under his present appointment or under any further appointment, and that the said securities would hold the bank harmless for any loss occasioned by any act of said cashier, either under his present appointment or any further appointment, until all his accounts with said bank had been fully settled and satisfied, and all money, funds and valuables belonging to said bank delivered by him, on proper demand, to the said board of directors of said bank, or the person authorized to receive the same.

Mispagel was first employed by the bank on February 17, 1890, and reappointed annually in January of each year until his final appointment January 2, 1904. During that period he gave three bonds, one executed when he was first appointed, his second one in January, 1898, and the third one, on which this suit was brought, January 2, 1904. He was discharged on the ninth of November, 1904, and the suit is for alleged defalcations which occurred during the period of his last appointment and the life of the last-mentioned bond. It appears from the record that suits had been brought on the two previous bonds for alleged shortages in Mispagel's accounts which occurred during the periods prior to the giving of the last-mentioned bond, involving sums aggregating $ 90,000. The present suit is on account of losses represented by twelve items amounting to $ 36,275.05, due to alleged misconduct of Mispagel during the life of the last bond.

The case was referred on motion and a compulsory reference was had.

The answer sets up a number of defenses, all of which are treated and disposed of by the referee, but those pressed upon our attention here are as follows:

A general denial, under which it is claimed that the proof does not sufficiently show the losses sued for occurred during the life of the bond sued on;

Allegations that Mispagel had acted as cashier of the bank for many years prior to the execution of the bond sued on, and had been guilty of misconduct amounting to violations of the law and causing losses to the bank, which misconduct was known to plaintiff and unknown to defendants; that plaintiff took the bond without communicating to defendants such knowledge, and that this concealment of the plaintiff's knowledge of the character and conduct of Mispagel was a fraud upon these defendants and releases them from their liability upon the bond;

Attacks upon the separate items of the statement in the plaintiff's petition, and averment that the false entries in connection with each item showed that they were made in an effort to cover up defalcations which occurred prior to the execution of the bond sued on.

The referee took the evidence and filed his report, in which he found that during the period of each of the preceding bonds given by Mispagel the funds of the bank were taken by him, or by others with his consent; that he made fictitious entries in the books to conceal and cover up such shortages; that he still concealed and carried forward the shortages which had originated during all the period of his three bonds, by means of false entries in the books of the bank made during the period of this last bond. But after a careful examination of all the evidence adduced, the referee satisfied himself that he had eliminated from consideration all such items. He found against the plaintiff as to seven of the twelve items sued on, and found in favor of the plaintiff upon five, as follows:

Interest item

$ 502.12

Draft No. 106420

3,000.00

Draft No. 106503

800.00

Raised note

135.47

Third National Bank transaction

18,596.10

Total

$ 23,035.69

The defendants filed exceptions to this report, alleging various errors on the part of the referee in his findings of fact admission and rejection of evidence, and conclusions of law, which exceptions were by the circuit court overruled, and judgment was entered by said court in accordance with the report of said referee for $ 50,000, the amount of the bond, and the damages assessed at $ 23,035.69. From this judgment defendant appealed.

I. It is necessary to consider first the admissibility of certain items of evidence.

The so-called deposition of ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT