Aiple v. South Side Nat. Bank in St. Louis, 33340

• Decision Date: 20 May 1969
• Docket Number: No. 33340,33340
• Parties: Otto AIPLE, Plaintiff-Respondent, v. SOUTH SIDE NATIONAL BANK IN ST. LOUIS, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 145

442 S.W.2d 145

Otto AIPLE, Plaintiff-Respondent, v. SOUTH SIDE NATIONAL BANK IN ST. LOUIS, a Corporation,

Defendant-Appellant.

No. 33340.

St. Louis Court of Appeals, Missouri.

May 20, 1969.

Motion for Rehearing or to Transfer to the Supreme Court

Denied June 13, 1969.

Edward C. Schneider, St. Louis, for defendant-appellant.

Gerald D. Morris, St. Louis, for plaintiff-respondent.

BRADY, Judge.

Plaintiff received jury verdict and judgment was entered thereon in the amount of $1,515.00 for actual damages suffered by plaintiff as a result of defendant's negligence in paying plaintiff's check after receiving a stop payment order.

The petition alleged plaintiff drew a check on defendant payable to one Walter in the amount of $1,515.00; that he gave notice in writing to defendant to stop payment on said check on May 11, 1964; and that on June 25, 1964 defendant negligently paid the check. Defendant's answer consisted of a general denial and alleged the check was given to Walter in payment for a used automobile, title to which was transferred to plaintiff; that plaintiff still retains the automobile and the title; and that plaintiff would be 'unjustly benefited and unjustly enriched under the facts and circumstances as alleged in plaintiff's petition at the expense of this defendant and, therefore, cannot recover in this action.'

We must first determine what issues are properly preserved by this appeal. The first and second of defendant's stated allegations of prejudicial error consist of abstract statements of law without any reference to or any showing how such statements are related to any action or ruling of the trial court. As such, both allegations of prejdicial error are in violation of Civil Rule 83.05(e), V.A.M.R., and we would be justified in disregarding either or both of them. However, with regard to the first we can with difficulty ascertain the action taken by the trial court which defendant contends was erroneous. This alelgation of prejudicial error presents the contention the stop payment order signed by the plaintiff relieved the bank of liability in the event it paid the check through negligence, and that such a release is a valid and legal agreement binding the parties and not void as against public policy. There is no reference to any action taken by the trial court which defendant contends was prejudicially erroneous. Giving the defendant's brief a very liberal reading and by reference to the motion for new trial and the argument portion of the brief, we construe the contention attempted to be stated is that the trial court was in error when it denied defendant's motion for directed verdict on the ground the stop payment order excuses any negligence on the part of defendant. We will rule that issue.

We cannot make such a determination with regard to defendant's second allegation of prejudicial error. That allegation reads: 'A depositor cannot make a profit out of the bank's mistake in paying the check, contrary to the depositor's stop payment order, but can only recover what is his loss. Action by the depositor in his retention of the benefits, in consideration of which the check was given, constitutes ratification by depositor of the bank's payment of the check and the bank is not liable. In this case the plaintiff used and operated this used Buick station wagon automobile from June 25, 1964 (the date the bank cashed the check) through 1965, 1966 and 1967 and still has the automobile.' Reference to the motion for new trial will not help us understand of what trial court's action defendant complains. It does not contain any reference to a theory of defense based upon plaintiff's having ratified defendant's payment of the check. The only allegation therein in any way pertinent to this issue is that stating plaintiff's failure to surrender and deliver title to the automobile '* * * constitutes an unjust enrichment.' Neither are we assisted by reference to the argument portion of the brief. Therein defendant advances the theory of ratification as well as contending plaintiff did not suffer any loss. The best we can make of this allegation of error is that defendant is attempting to raise the same matter stated in its answer; i.e., retention of the automobile constituted a complete defense to plaintiff's cause of action. In any event, defendant fails to refer us to any action of the trial court whereby defendant was prevented from advancing its contention be it ratification, unjust enrichment, or both. Neither are we able to discover any such ruling in the transcript. To the contrary, the transcript discloses defendant made the objection which prevented this issue being developed and that defendant agreed with plaintiff the latter was entitled to recover the face value of the check if any amount. Neither does defendant now present any allegation of error with regard to Instruction No. 4, the measure of damage instruction, informing the jury that in the event they found in favor of plaintiff they must award him the sum defendant paid out of plaintiff's account on the check. Nor did defendant offer any instruction attempting to limit plaintiff's recovery or otherwise prevent the 'unjust enrichment' it now contends resutls from this verdict. Under such circumstances it is easy to understand why defendant's brief is devoid of any reference to any action of the trial court with regard to this allegation of prejudicial error and why this is the first indication defendant contends plaintiff was entitled to something less than the face amount of the check. We hold this allegation of stated error to be in violation of Civil Rule 83.05(e), supra, and to preserve nothing for our review.

Defendant's third allegation of error concerns its offered Instruction 'D'. That point is not properly before us for ruling for the reason defendant has failed to include in its brief any argument directed to this allegation of error. Neither are there any cases cited in support of this allegation of error. It is therefore abandoned or waived. Civil Rule 83.05(a)(4), Notes 178, 179, V.A.M.R. Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564; Sigmund v. Lowes, Mo.App., 236 S.W.2d 14.

The last of defendant's allegations of prejudicial error attempts to state five rulings of the trial court with regard to the admission of evidence which defendant contends constituted prejudicial error. Of these five only two are contained in the motion for new trial. The other three are therefore not before us for ruling. Civil Rule 79.03, V.A.M.R. Defendant's contentions as to the two allegations properly preserved will be detailed later in this opinion.

The facts bearing on those allegations of prejudicial error properly before this court show plaintiff had maintained a regular checking account with defendant since 1963. He purchased a used Buick station wagon from one T. J. Walter on January 24, 1964. He had previously paid $75.00 down on the car and on the above date paid the outstanding balance with his personal check for $1,515.00. The check was payable to Walter and was drawn on defendant. Plaintiff had borrowed $1,500.00 from defendant to pay for the car, and to secure this loan plus interest the bank took a chattel mortgage on the automobile in the amount of $1,722.00. This loan was repaid in schedule, the last payment being made in January of 1966.

Plaintiff contends the car developed severe mechanical defects shortly after he purchased it necessitating extensive repairs, and that when he confronted Walter with such repairs plaintiff was told Walter could do nothing for him. Plaintiff then began efforts to stop payment on the $1,515.00 check he had given to Walter which had not yet been paid by the bank. His wife called defendant and requested it stop payment on the check but was informed plaintiff would have to come down and sign a stop payment form. When he went to the bank he had a conversation with one Oehler, one of defendant's officers, about stopping payment on this check. Oehler testified plaintiff informed him the check had not been paid and asked if he should stop payment on it. Oehler told plaintiff he was not going to advise him, but if plaintiff wished to stop payment he should go to another part of the bank and there execute a stop payment order on a form provided by the bank. This form was introduced into evidence as Exhibit 'B' and reads as follows: "NOTICE TO STOP PAYMENT ON CHECK SOUTH SIDE NATIONAL BANK In St. Louis Grand and Gravois, St. Louis 16, Mo. Date 5--11--64 Time Rec. 10:23 By VL Gentlemen: Please stop payment on Check No. 33, dated 1--24--64 for $1515.00 payable to T. J. Walter Signed as follows

Otto Walter

Name

The undersigned agrees to reimburse you for all damages, cost and expenses to which you may be subjected by reason of refusal to honor said check and to furnish due and sufficient security therefor whenever demanded. The undersigned understands that you do not guarantee that such check will not be paid if presented and agrees not to hold you liable on account of the payment of the same contrary to this request should it be occasioned through inadvertence, mistake or accident, or if by reason of such payment other items drawn by the undersigned are returned insufficient. This stop payments order will remain in effect for ninety days unless renewed in accordance with the Statutes of the State of Missouri, in such case made and provided.

/s/ Otto Aiple"

Name

Plaintiff signed such a form, which was filled out by a bank employee, and was given a copy. Later plaintiff received his statement and cancelled checks from defendant and found the check in question had been paid by defendant some forty-five days after plaintiff had signed the notice to stop payment.

Plaintiff then went to see Mr. Helein, one of defendant's officers, in an attempt to determine why the check had been paid. He asked Helein how it happened and Helein said 'the help did it' but that it was very odd it...