Algeo v. Stewart
| Citation | 7 S.W.2d 470 |
| Decision Date | 11 June 1928 |
| Docket Number | No. 16159.,16159. |
| Parties | ALGEO v. STEWART. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Boone County; D. H. Harris, Judge.
Action by Carrie P. Algeo against J. A. Stewart. Judgment for defendant, and plaintiff appeals. Affirmed.
Clarence A. Barnes, of Mexico, Mo., for appellant.
Dinwiddie & Sapp, of Columbia, for respondent.
This is a suit to recover an alleged unpaid balance on a promissory note.
The petition charges: That on February 15, 1920, defendant executed his negotiable promissory note for $5,000, payable one year after date with interest from date at 7 per cent., compounded annually. That defendant claimed to have paid the same, both principal and interest, and said note was delivered to him by the bank, which was the custodian of it, but that the note has not been paid although defendant is in possession thereof. That the note was delivered to defendant through error and on the representation of defendant that it had been fully paid. That because said note is now in possession of defendant, plaintiff cannot file the same nor attach it to the petition. That said note matured on February 15, 1921, and that defendant has made the following payments thereon: $353.67 on November 7, 1921; $250 on February 20, 1922; $350 on March 3, 1923; $150 on March 14, 1924; $200 on April 22, 1924; $2,500 on June 7, 1924; $1,000 on October 11, 1924; $1,200 on March 17, 1925; $220.11 on June 24, 1925. That the balance due on said note on May 16, 1927, is $557.87, which defendant has failed and refused to pay. Judgment is sought for this amount with interest. The petition is verified by plaintiff.
The answer admits the execution of the note as alleged in the petition, but avers that on or about June 24, 1925, and prior to the commencement of this action, defendant fully paid and discharged said indebtedness, and that on or about October 19, 1925, said note was delivered to defendant by plaintiff or her agent, the Exchange National Bank of Columbia, Mo.
The reply was a general denial. A timely motion filed by plaintiff to require defendant to produce the note in question to be used in evidence was sustained by the court. Upon the issues thus made the cause was tried to a jury, resulting in a verdict for defendant, and judgment was entered accordingly. Motion for new trial was ineffectual, and plaintiff appeals.
The record discloses that plaintiff resides in San Diego, Cal., and defendant in Columbia, Boone county, Mo.; that for a number of years from February, 1920, and up to the filing of this suit, defendant handled considerable money for plaintiff; that he sold to her promissory notes of other persons and in a number of instances gave his own note for the amount and attached the notes sold as collateral. It appears that on February 15, 1920, defendant gave plaintiff his note for $5,000 (the note in suit), and gave divers notes as collateral thereto; that he paid plaintiff various sums on the note in question, some payments being made direct to her, but usually these payments were by deposit to plaintiff's credit in the Exchange National Bank at Columbia, this being done at the request of plaintiff; that she kept her money in an account at said bank and authorized the bank to credit the payments on the note in issue herein. Defendant claims the balance of said note finally was paid on or about June 24, 1925.
Further, it appears from the evidence that the note in question was in the actual possession of plaintiff at Gridley, Ill., until some time during the year 1922, when it was placed in the Exchange National Bank at Columbia, Mo., and that in the following year the bank was made custodian thereof and agent for plaintiff to collect it and credit the payments thereon. Plaintiff retained such possession of the note after it was paid until in March, 1926, when it was surrendered to defendant by said bank.
The testimony shows that about October 10, 1925, plaintiff computed the note, decided it had been fully paid, and directed the bank to cancel and deliver the same to defendant, the cashier having refused to surrender the note until authorized by plaintiff so to do. As soon as the note came into the hands of defendant it was destroyed. About two years thereafter plaintiff filed this suit, claiming a balance due thereon as above stated and that the note had been canceled and surrendered through mistake in the credits thereon; that the credit of $353.67 was the difference between the amount paid and the amount called for in a note sold by defendant to plaintiff; that the $220.11 item was the remainder of a deposit of $825.11 made by defendant to plaintiff's credit in the Exchange National Bank, $500 of which was applied on "the Bailey note," which defendant had sold to plaintiff, and $105 applied on another note called "the Clyde Stewart," note, and represented three monthly installments on said note, thus leaving $220.11 for credit on the note in issue; that all the other credits were for money deposited by defendant to plaintiff's credit in the bank.
Another matter of dispute arose as follows: Plaintiff wired defendant from California for $1,500. Defendant replied by letter, which was misdirected, but later was received by plaintiff. On March 9, 1925, defendant wired plaintiff to check on the bank for $1,500, the amount requested by her in the telegram; that plaintiff believed at that time that defendant had deposited the $1,500 to her credit, while in fact he had deposited $1,200; therefore the credit on the note was $300 short; that plaintiff had some other funds on deposit in the bank and her check for $1,500 was honored; that had the $1,500 been deposited, the amount due on the $5,000 note would have been approximately $220.11. In a letter to plaintiff dated June 29, 1925, defendant stated $220.11 was the balance and interest due on the $5,000 note "as per your figures." On October 10, 1925, plaintiff wrote the cashier of the bank:
"Judge Stewart has paid all of his note for $5,000 and all interest on it, I think, so you can give him his note. * * *"
Plaintiff claims that on learning, later, that only $1,200, instead of $1,500, was deposited by defendant, this suit was instituted. Defendant testified he had told plaintiff that when she was in need of money he would deposit same to her credit. The evidence shows defendant knew the status of plaintiff's account with the bank at all times and that his statement to her that she could check on the bank for $1,500 was not to say he had deposited that amount to her credit, but to tell her a check drawn by her for $1,500 would be honored.
At the trial defendant exhibited four checks for $100 each which he claims were applied on the $5,000 note. The testimony shows one of these checks, dated November 24, 1920, deposited by defendant to plaintiff's credit, was to cover an overdraft of $89.65 of plaintiff at the bank and that it was deposited at the request of the bank; the second, dated November 15, 1920, was also so deposited the third, dated June 7, 1921, defendant stated was an advancement of interest and was paid on request contained in a letter in evidence written by plaintiff from Gridley, Ill., to defendant. Plaintiff claimed these four checks were to be applied on other notes and other items between the parties and that they were so applied.
The testimony was sharply conflicting on many material items, and at times witnesses on both sides became more or less confused in giving details of the numerous transactions between the parties. Over the objections of plaintiff, W. E. Smith, cashier of the Exchange National Bank, was permitted to testify that plaintiff's account at the bank was overdrawn in the amount of $89.65 on November 24, 1920, at the time defendant deposited $100 to plaintiff's credit. The admission of this testimony is assigned as error because foreign to any issue in the case. It is not disputed that at all the times involved in this suit said Smith was cashier of the bank; that the deposit of $100, in fact, was credited to plaintiff's account. Neither is it disputed that at various times defendant deposited money to plaintiff's credit in said bank and that the bank was authorized to accept such deposits. The cashier, as it appears, was testifying from records wherein plaintiff's account was kept. The point to which the testimony applied was as to how...
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