Midwest National Bank And Trust Company v. Parker Corn Company, a Corp.

• Decision Date: 22 May 1922
• Citation: 245 S.W. 217,211 Mo.App. 413
• Parties: MIDWEST NATIONAL BANK AND TRUST COMPANY, Appellant. v. PARKER CORN COMPANY, a Corporation, Respondent
• Court: Kansas Court of Appeals

245 S.W. 217

211 Mo.App. 413

MIDWEST NATIONAL BANK AND TRUST COMPANY, Appellant. v. PARKER CORN COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, Kansas City

May 22, 1922

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Kelly Buckholz, Kimbrell & O'Donnell for appellant.

Kennith W. Tapp and H. H. McCluer for respondent.

OPINION

BLAND, J.

This is a suit brought in two counts. The first count alleges that plaintiff, a banking corporation of Kansas City, Missouri, entered into an agreement with defendant, when it became a depository of the latter, providing that defendant should draw and deposit bills of exchange in the form of drafts payable to defendant's (plaintiff's) order; that plaintiff agreed to accept such drafts for collection and when the drafts were deposited plaintiff should give defendant credit for the amount of such drafts as though they were cash; that defendant should be permitted to issue checks against the amount so credited; that if any such drafts were not paid by the drawee defendant would reimburse plaintiff and the amount of the draft should be charged back to the defendant with interest; "that such agreement became the usual course of dealing between plaintiff and defendant;" that on February 27, 1918, defendant deposited with plaintiff a draft in the sum of $ 1290.90, addressed to Beckwith & Inglis, payable to the order of plaintiff on demand; that plaintiff gave credit on its books to defendant for said sum; that plaintiff endorsed the draft and forwarded it together with the bill of lading attached thereto to the First National Bank of Wyoming, Iowa, for presentation and collection from said Beckwith & Inglis; that defendant thereafter deposited checks with plaintiff against the amount of said draft; that plaintiff paid said checks so that the said sum of $ 1290.90 was received by the defendant "or by others at its direction and for its use and benefit;" that the First National Bank of Wyoming failed to collect from Beckwith & Inglis; that when the draft was returned unpaid defendant refused to pay the same; that said draft had never been paid either by the drawee or by defendant; that although plaintiff notified defendant of the failure to collect the draft, defendant refused to pay the amount. The first count of the petition prays judgment for $ 1290.90 with interest at six per cent from February 27, 1918.

The second count alleges that--

". . . on the 27th day of February, 1918, the plaintiff mistakenly believing that defendant had funds to his credit with plaintiff to pay the same, honored checks drawn by the defendant and duly presented to it by the defendant or by persons at its order aggregating twelve hundred ninety dollars and ninety cents ($ 1290.90).

That on said date the defendant did not have money on deposit with the plaintiff sufficient to cover the payment of the amount of the checks presented for payment, and by reason thereof the plaintiff has paid either to the defendant or for its use and benefit, the sum of twelve hundred ninety dollars, and ninety cents ($ 1290.90), and that by reason thereof the said sum of twelve hundred ninety dollars and ninety cents ($ 1290.90), is now due from the defendant to the plaintiff, and that payment was demanded from the defendant on or about the 27th day of February, 1918, said defendant failed to pay and still refuses to pay said sum.

Wherefore, plaintiff prays judgment for said sum of twelve hundred ninety dollars and ninety cents ($ 1290.90), with interest from the 27th day of February, 1918, and costs of suit."

In its answer to the first count of the petition defendant generally denies the allegations of the petition and alleges that upon the deposit of the draft mentioned in the petition defendant was given credit for the full amount thereof with the privilege of checking against the proceeds thereof and defendant did check against said proceeds and "that by reason thereof plaintiff became and was the purchaser and owner of said draft with the security or collateral thereto attached;" that the draft on presentation to the drawee was not paid and was not protested and no notice of non-payment was given defendant "by reason thereof this defendant was absolutely released." Defendant further alleged--". . that plaintiff negligently failed to look after or take any care of the bill of lading and the corn represented thereby, but permitted the corn covered by said bill of lading to be absolutely lost, to the damage of this defendant in the sum of the amount of said draft, and by reason thereof plaintiff is estopped from demanding payment from defendant."

Defendant then alleges that when the draft was returned not protested that plaintiff told defendant that it would hold liable the First National Bank of Wyoming, Iowa, for failure to protest said draft and would collect the same from that bank; that plaintiff retained the draft and bill of lading for that purpose but failed to give defendant any notice for more than seventeen months after the draft had not been paid or that plaintiff would look to defendant for payment; that in the meantime the plaintiff had permitted the car of corn to become completely lost so that defendant obtained no benefit therefrom "and by reason thereof plaintiff is estopped from demanding payment from defendant." The answer further alleges--

"That had said bill of lading been returned to this defendant, that this defendant could and would have realized therefrom sufficient to cover the amount of said draft, and that if plaintiff had properly looked after said corn represented by said bill of lading and properly cared for the same, that it could have realized sufficient therefrom to have satisfied said draft, but that plaintiff negligently failed to give the car of corn covered by said bill of lading any care whatever, and never at any time notified this defendant that said corn was not receiving proper care, and that defendant did not know said corn was not receiving proper care, but believed it was being properly looked after by plaintiff herein."

The answer to the second count of the petition consisted of a general denial. The reply consisted of a general denial.

At the close of all of the evidence the court instructed the jury to find for plaintiff, resulting in a general verdict in favor of plaintiff in the sum of $ 1524.53. One of the grounds for a new trial assigned in the motion for a new trial was "that the verdict was a general verdict for plaintiff while the petition was in two counts and the verdict should have been on each count separately." Afterwards the court sustained defendant's motion for a new trial, citing as a reason therefor "that there was no finding on the second count of plaintiff's petition."

Plaintiff insists that the court erred in sustaining the motion for a new trial on the ground assigned. We think plaintiff is correct in this. A defect in the verdict cannot be taken advantage of in a motion for a new trial but only in a motion in arrest of judgment. The object of a motion for a new trial is to attack matters dehors the record. In other words, it goes to matters of exception to be preserved by the Bill of Exceptions, while a motion in arrest is to call the court's attention to errors appearing on the face of the record proper. [Stid v. Railroad, 211 Mo. 411, 414, 415; Howell v. Jackson County, 262 Mo. 403.] The record proper consists of the petition, summons, all subsequent pleadings including the verdict and judgment. [Bateson v. Clark, 37 Mo. 31, 34; Fence Co. v. Brooks, 126 Mo.App. 495.] Under these authorities the matter of defect in the verdict could not be raised in a motion for a new trial but only in a motion in arrest. The motion for a new trial was sustained at a term subsequent to the rendition of the judgment, therefore the action of the trial court in sustaining the motion cannot be upheld on the ground that he was exercising his common-law discretion to grant a new trial upon his own motion at the same term the judgment was rendered. [Gray v. Lumber and Mining Co., 177 S.W. 595, 596.]

However, defendant contends that the action of the trial court in granting a new trial was proper in that it could and should have granted the new trial upon other grounds set forth in the motion for a new trial. In this connection defendant insists that the court erred in giving the peremptory instruction in favor of plaintiff. In the light of this contention it is necessary to state the facts in their most favorable light to defendant.

The evidence shows that by agreement and course of dealing between the parties defendant would deposit with plaintiff for collection drafts payable to plaintiff's order, including the draft in controversy, and that plaintiff would immediately give defendant credit for the amount of the draft and allow defendant to at once check against the deposit. It was further agreed that the bank should receive a collection fee of ten per cent per one hundred dollars on each draft, and in addition thereto interest on the draft during the time that should elapse between their deposit with the bank and the time the bank received the money therefrom. If the draft was dishonored it was to be protested and the defendant notified and upon its return to defendant it would reimburse plaintiff. Plaintiff handled on an average of ten such drafts per day for defendant. On February 6, 1918, this agreement was somewhat modified as will hereinafter appear.

The facts further show that in the early part of 1918 defendant sold a car of corn to one Livingston at Center Junction, Iowa, and that Livingston resold the corn to one Norris...