Austin-Western Road Mach. Co. v. Commercial State Bank

• Decision Date: 05 April 1926
• Docket Number: No. 15612.,15612.
• Citation: 282 S.W. 105
• Parties: AUSTIN-WESTERN ROAD MACHINERY CO. v. COMMERCIAL STATE BANK.
• Court: Missouri Court of Appeals

282 S.W. 105

AUSTIN-WESTERN ROAD MACHINERY CO. v. COMMERCIAL STATE BANK.

No. 15612.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by the Austin-Western Road Machinery Company against the Commercial State Bank. From a judgment for defendant, plaintiff appeals. Affirmed.

Chas. E. Murrell and W. F. Frank, both of Kirksville, for appellant.

Higbee & Mills, of Kirksville, for respondent.

BLAND, J.

This is a suit to recover the sum of $1,066.50, the proceeds of a certain warrant issued by the city of Kirksville, Mo., which defendant is alleged to have converted. There was a verdict and judgment in favor of defendant, and plaintiff has appealed.

This is the second appeal in the case. See Austin-Western Road Machinery Co. v. Commercial State Bank (Mo. App.) 255 S. W. 585, where the facts are stated. The facts in the second trial are substantially the same as those at the first trial; the cause was retried in conformity with the law laid in the opinion written on the former appeal. All 'the questions of law involved in the case having been passed upon in the opinion in the former appeal, the law laid down in that opinion is res adjudicata, especially in view of the fact that the holding at the former appeal was proper. Hinzeman v. Railroad, 94 S. W. 973, 199 Mo. 56.

However, plaintiff says that the evidence at the last trial was not the same as at the first trial as to Bryson's authority and contract in the state of Iowa. At the former trial the Iowa contract was not introduced in evidence, while what plaintiff claims to have been a copy of that contract was introduced in evidence at the last trial, over defendant's objection. However, the court improperly permitted the introduction of this purported copy of the contract, and the same should not be considered for the reason that the witness who testified concerning the matter stated that he had made no personal examination of plaintiff's files in an effort to obtain the original contract, but that he had asked another employee of plaintiff to make the examination, and' the witness did not know whether the other man had made any search for the original. The witness stated that the records of plaintiff for the year 1911, when the Iowa contract was executed, were at Harvey, Ill., while the office of plaintiff at the time of the trial was in Chicago. The witness testified that he knew the...