Roe v. Bank of Versailles

• Citation: 167 Mo. 406,67 S.W. 303
• Parties: ROE v. BANK OF VERSAILLES.
• Decision Date: 11 March 1902
• Court: United States State Supreme Court of Missouri

67 S.W. 303

167 Mo. 406

ROE v. BANK OF VERSAILLES.

Supreme Court of Missouri, Division No. 2.

March 11, 1902.

NEW TRIAL—ORDER—STATEMENT OF GROUNDS — APPEAL — ADDITIONAL ABSTRACT — EVIDENCE —EXCLUSION—ERROR CURED—OBJECTION—EXCEPTION—HEARSAY — BANKS — REFUSAL TO HONOR CHECKS—ACTION—MOTION FOR SECURITY FOR COSTS—INSOLVENCY—PAROL EVIDENCE—BANK PRESIDENT—AUTHORITY TO LOAN—RATIFICATION—ESTOPPEL— BANK BOOK ENTRIES AS EVIDENCE—PURCHASE OF PLAINTIFF'S CLAIM—APPLICATION OF DEPOSITS ON NOTE—PAROL AGREEMENT —INSTRUCTIONS—TRIAL—EXCLUSION OF EVIDENCE—REOPENING CASE—WITNESSES —IMPEACHMENT.

1. Where the trial court, in granting a motion for a new trial, failed to specify the ground on which its action was based, as required by Rev. St. § 801, its action cannot be assumed to have been based on any particular ground, but the ruling will be tried on appeal, as prior to the new statutory rule, by looking into the correctness of the rulings below in admitting or rejecting evidence and in giving instructions.

2. Where, in an action against a bank for damages to plaintiff's business and credit consequent on the bank's refusal to honor checks drawn by plaintiff on it, the court permitted the same inquiry to be pursued to its fullest extent, the previous exclusion on defendant's objection of plaintiff's testimony as to the extent of the injury done him in his business by the refusal to honor his checks is harmless error.

3. An objection to a question that it was incompetent, irrelevant, and immaterial, without stating any specific ground, is insufficient to raise the objection that the evidence related to a matter not in issue.

4. An objection to a question asked a witness is of no avail on appeal, where no exception is taken upon the overruling of the objection.

5. In an action against a bank for damages to plaintiff's business and credit, consequent on the bank's refusal to honor his checks, a witness was asked if he understood from any source or in any way, or whether he got information from any one, that the credit plaintiff had in his stock business was on account of the defendant furnishing him money, and whether plaintiff's credit in that community was based upon that fact, and replied that he might have heard it indirectly, but he did not know; it might have had something to do with it. Held, that neither the questions nor answers could have worked plaintiff any hurt, as the witness showed a wholesale ignorance on the subject.

6. The questions called for and the answers constituted hearsay.

7. What the witness understood was not evidence.

8. It was proper to refuse to permit a surety for plaintiff on a note to state whether the payee said anything to plaintiff about his checks being protested, when the matter was fixed up.

9. It was proper to refuse to admit in evidence the motion filed by defendant to require plaintiff to give security for costs, for the purpose of showing that the plaintiff was insolvent, and that defendant admitted it; for such insolvency was of the time of bringing the suit, and bore no relevancy to the issue joined.

10. Plaintiff having been permitted to show his financial condition after the protest of his checks, no possible injury accrued to him by the refusal to admit the motion in evidence.

11. It was competent to prove by parol, through the cashier, that plaintiff had been doing business with the bank prior to a certain date, instead of resorting to the bank books for that purpose.

12. The president of a bank is authorized to make an agreement whereby a party is to get money from the bank to buy a certain description of hogs.

13. A person borrowing money from a bank through its president cannot deny the authority of the president either to loan the money to him or to dictate the terms of such loan.

14. Where a bank permits its president as its agent to arrange a loan of money for the purchase of stock, it is estopped to afterwards deny the legitimate nature of the loan.

15. Where the books of a bank show that a certain loan was made, and there is no countervailing evidence, it will be presumed that the nature and character and all the essential features of the loan were known to the bank; and, no disapproval of the loan appearing, it will be further presumed that the bank approved of the loan.

16. Though the act of a bank's president in arranging for a loan of money for the purchase of stock is unauthorized, yet, if the loan is afterwards ratified by the bank, the bank cannot subsequently question its legitimate character.

17. Where the president of a bank made an agreement with a party whereby such party was to get money from the bank to buy a certain description of hogs, he is competent to testify of the kind of hogs which the party was to buy under the terms of the contract as a condition of getting credit at the bank.

18. It is proper to admit in evidence the entry from a bank journal showing the amount paid on a note payable to the bank.

19. Where a note is not contained in defendant's abstract on his appeal, so that it cannot be ascertained whether there was a credit on the note or not, plaintiff, if he desired to supply the omission in defendant's abstract and make the note and its lack of a credit prominent, should have complied with supreme court rule 11, by filing an additional abstract covering the omission, instead of by making a similar statement in his brief.

20. Where a party makes no objection to the admission of testimony, it is too late afterwards to move its exclusion.

21. Whether the trial court erred in refusing to strike out evidence cannot be considered on appeal, where no exceptions were saved to such ruling.

22. Where no exception was saved to the overruling of an objection to a deposition, the point is not open for review on appeal.

23. Where a witness making a deposition did not testify to anything material to the issues in a case, there was no prejudicial error in overruling an objection to his deposition.

24. In an action against a bank for damages to plaintiff's business and credit, consequent on the bank's refusal to honor his checks, evidence as to whether or not a person offered to buy plaintiff's claim against the bank is wholly immaterial and foreign to the issues, and an objection to asking plaintiff in regard to the person making him such an offer is well taken.

25. Though the person alleged to have made the offer had denied that he ever tried to buy plaintiff's claim against the bank, evidence of plaintiff that he had made such an offer is not admissible for the purpose of impeaching such person's testimony on that point; it being on a collateral issue on an impertinent matter.

26. It is entirely discretionary with the trial court whether a witness, after the evidence is closed, shall be permitted to again occupy the witness stand.

27. Parol evidence is competent to show that, at the time a note was given to a bank, the maker directed that any deposit he should thereafter make should be credited on the note, although before its maturity, for it did not in the least vary or contradict the note.

28. An agreement by the maker of a note to a bank that any money thereafter deposited by him in the bank shall be credited on the note, although before its maturity, need not be in writing.

29. In an action against a bank for damages to business and credit, consequent on the bank's refusal to honor checks, it appeared that plaintiff was a stock dealer, and obtained money from the bank from time to time on his checks to enable him to purchase hogs suitable for the market, the proceeds of which, when sold, were deposited in the bank to meet his overdrafts, and that to meet a large overdraft plaintiff executed a note for a portion thereof payable within a certain time. There was evidence that at the time the note was given plaintiff expressly directed the cashier of the bank to apply the deposits that might be made from time to time, as the hogs should be sold, as a credit on the note, notwithstanding it might not be due when the sales were made. Held, that it was proper to instruct that if the above facts were so, and afterwards and before the maturity of the note the bank received money from plaintiff, which was credited on the note, and plaintiff had no other money in the bank at the time of the protest of his checks, then the verdict should be for defendant.

30. An erroneous instruction, given at the instance of a party, furnishes him no basis for an affirmance of the judgment granting him a new trial, notwithstanding such instruction is in conflict with those given for the other party.

31. Where the maker of a note to a bank agreed that deposits thereafter made by him might be applied on the note, though it was not due when such deposits were made, and directed the cashier to so apply the deposits, he is estopped from claiming such deposits as subject to his checks.

Appeal from circuit court, Morgan county; D. W. Shackleford, Judge.

Action by R. S. Roe against the Bank of Versailles. From an order granting plaintiff's motion for a new trial, defendant appeals. Reversed.

Ross & Bohling and W. M. Williams, for appellant. Wm. Forman and D. E. Wray, for respondent.

SHERWOOD, J.

Action for damages to plaintiff's business and credit consequent on the refusal of defendant bank to pay certain checks drawn by plaintiff on it, notwithstanding plaintiff alleged he had funds in the bank subject thereto. Five counts make up the petition. Each count alleged plaintiff was a trader, his business being the buying of stock in Morgan and other counties, and he was a customer of defendant bank; that in October, 1897, he drew a check upon said bank, which was duly presented, and payment thereof refused by defendant, and the check protested; that he had funds in the bank at the time subject to said check, and that the nonpayment thereof resulted in serious damage to his business and credit; and that he was compelled to sacrifice his property to...