Mathias v. O'Neill

Decision Date19 December 1887
Citation6 S.W. 253,94 Mo. 520
PartiesMathias, Appellant, v. O'Neill
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Affirmed.

J. J Lindley and W. L. Scott for appellant.

(1) The state of facts shown by the record constituted respondent a trustee of this money, which was a part of the county funds. A right of action existed in the county to have it restored to the county treasury; and when appellant made good the amount by paying the same into the county treasury out of his individual means, he was subrogated to the rights of the county in this regard. (2) It makes no difference as to whether or not respondent knew that the three thousand dollars was a part of the county funds, in his hands by mistake. He knew it did not belong to himself. He knew that he held it in trust for whoever it did belong to. The moment he proceeded to put it in bank, he would have discovered the three thousand dollar check, already put to the credit of Fitzpatrick; and this alone would have sufficed to put him upon inquiry. But the return to him by Fitzpatrick of the county order, which but one hour before he had himself taken from the bank and handed to the treasurer, in order that this much should be withheld from Fitzpatrick's warrant, is an additional circumstance that he was put upon inqury as to the facts; and being put upon inquiry, the well-established principle of law is, that he stands affected with the knowledge of every fact which the prosecution of that inquiry would have disclosed. Muldrow v. Robinson, 58 Mo 350, 351; Meier v. Blume, 80 Mo. 179; Speck v. Riggin, 40 Mo. 179. (3) The statute of limitations pleaded has no application. The fraud in the retention of the money was not discovered until in the fall of 1879, only four years before the institution of the suit. There was nothing to put appellant upon inquiry, previous to that time, that the three thousand dollars had been paid by Fitzpatrick to respondent. The fifth subdivision of section 3230, Revised Statutes, 1879, applies.

O'Neill Ryan for respondent.

(1) It was not error to refuse to permit Mathias to give an opinion as to whether or not he considered the banking-house of Taussig, Gemp & Company, a safe institution. This opinion, one way or the other, could not have possibly added to, or detracted from, his credibility as a witness. (2) The court did not err in allowing Chassaing to answer that the entries in the book led him to think he turned over the collateral. He testified that the entries were in his handwriting, they showed he had given the notes to the teller, and the custom was at the same time to turn over collateral securities. The rule of law is, "when there is a question whether a particular act was done, the existence of any course of office or business, according to which it naturally would have been done, is a relevant fact." Reynolds-Stephens on Evidence, p. 24, art. 13; Greenl. on Evid., sec. 40. (3) There is no question of law, strictly speaking, raised in this case. It is purely one of fact. The cases cited by counsel, relative to respondent's knowledge, might be applicable had the appellant established his complaint by his evidence; as he has not done this, the rule of law, to sustain which the cases are cited, need not be here discussed. (4) There is, however, a general rule which this court has adopted for its guidance in passing upon questions of fact, determined by the lower court as a chancellor in equity cases, and that is, "this court, even in equity cases, will not interfere when questions of fact have been passed upon by the trial court, and there is evidence on both sides, unless the decision is clearly erroneous." Gill v. Ferris, 82 Mo. 168. "It is well settled in this state that the finding of the chancellor will be deferred to by this court, unless he has manifestly disregarded the evidence. Snell v. Harrison, 83 Mo. 658; Royle v. Jones, 78 Mo. 403; Chapman v. McIlwrath, 77 Mo. 43; Hodges v. Black, 76 Mo. 537; Chouteau v. Allen, 70 Mo. 366; Sharpe v. McPike, 62 Mo. 300.

OPINION

Sherwood, J.

The petition states that plaintiff, in the year 1873, was treasurer of the county of St. Louis, and that defendant was, at the same time, presiding justice of the county court of said county, and also president of the Citizens' Savings Bank, a banking institution in the city of St. Louis; that one Dennis Fitzpatrick was a creditor of said county to the amount of seven thousand dollars, and had a county warrant therefor in November, 1873, upon plaintiff as treasurer of said county; that, previously to the issuance of this warrant, and on or about October 23, 1873, the said county court had allowed three thousand dollars of said seven thousand dollar claim in favor of said Fitzpatrick, and made an informal order recognizing said amount of three thousand dollars as due him; that subsequently, said Fitzpatrick obtained a loan from said bank, depositing as collateral for the loan a duly certified copy of said order for three thousand dollars; that thereafter, and on or about November 22, 1873, defendant requested plaintiff to pay three thousand dollars of the amount of the aforesaid seven thousand dollars out of the funds in plaintiff's hands as treasurer, and to pay the same into said bank, to the end that Fitzpatrick's indebtedness to the bank might be thereby liquidated. The defendant left with plaintiff at the same time the said copy of the order for three thousand dollars, which Fitzpatrick had previously left at the bank; that, as a matter of favor to defendant, plaintiff complied with this request, and paid said three thousand dollars into bank out of the county funds on the said twenty-second of November, 1873, and instructed his clerk, whose duty it was to pay warrants on the treasury, to pay but four thousand dollars on Fitzpatrick's warrant of seven thousand dollars, and to deliver up to said Fitzpatrick said copy of the county order, which plaintiff left with his clerk for that purpose; but plaintiff says that said clerk did, on said twenty-second of November, 1873, by inadvertence, pay the full amount of seven thousand dollars to Fitzpatrick, and at the same time handed him said copy of the county order for three thousand dollars; that said Fitzpatrick, immediately upon said payment to him, handed to defendant out of said fund of seven thousand dollars so paid him, three thousand dollars thereof; and at the same time handed him said copy of the county order, and that defendant accepted said amount and order from him; that defendant became aware that said amount had been paid to Fitzpatrick by mistake, and that he, the defendant, held the same in trust for plaintiff, plaintiff having, as the petition avers, made good the shortage to the county by paying the same into the county treasury out of his individual means; that instead of handing the said three thousand dollars over to plaintiff, as was his duty, the defendant converted the same to his own use, all of which was done by defendant without plaintiff's knowledge, and without any information or suggestion that said three thousand dollars had ever come into defendant's hands, until within a few months before the commencement of this suit. Plaintiff asks that defendant may be decreed to be a trustee of plaintiff in respect of said three thousand dollars and be decreed to account for the same, and that plaintiff have judgment for said amount, with proper interest and costs.

Defendant's answer denies all the material averments of plaintiff's petition, except that plaintiff was treasurer as aforesaid, and that he was presiding justice and president of the said bank; and pleads the statute of limitations of five years. The reply denies all allegations of new matter in the answer. After hearing the evidence in the cause, the trial court found the issues for the defendant, and dismissed the petition. Three grounds were made the basis for a rehearing of the cause: (1) That, on the weight of testimony, the court should have decided in favor of the plaintiff; (2) that proper evidence was rejected; and (3) that improper evidence was admitted. These grounds are also insisted upon here.

I. There was no error in rejecting the questions as to whether the plaintiff regarded the banking-house of Taussig, Gaup & Company as a safe and reliable house, at the time he made deposits there. This question was wholly irrelevant to the issue joined, which was whether the defendant had obtained the three thousand dollars mentioned in the petition, and converted the same to his own use. The deposit mentioned was one connected with a controversy with the county, and not at all connected with the case at bar. Counsel for plaintiff claim that they had a right to ask the question in order to show plaintiff's good faith in making the deposit because they say an attack had been made on the credibility of the plaintiff, based upon the ground that he was a defaulter. This assertion is not borne out by the record; on the contrary, the record is express on the point that the court refused to allow defendant's counsel to show specific acts in order to affect the credibility of the witness. Specific acts of either good or...

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