Bank of Ethel v. Colmen
| Decision Date | 08 November 1926 |
| Docket Number | No. 15760.,15760. |
| Parties | BANK OF ETHEL v. COLMEN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Macon County: Vernon L. Drain, Judge.
Action by the Bank of Ethel against J. H. Colmen, in which defendant filed a counterclaim. From a judgment for plaintiff and for defendant on his counterclaim, plaintiff appeals. Affirmed.
Ben Franklin & Son, of Macon, for appellant.
Otho F. Matthews and Ed S. Jones, both of Macon, for respondent.
This is a suit on a promissory note, dated July 3, 1923, payable on demand, in the principal sum of $3,750, at 8 per cent. interest, the interest to be compounded annually, and providing for a charge of 10 per cent. as attorney's fee for collection if enforced by law. The note is made payable to the Bank of Ethel, Ethel, Mo., and signed by defendant herein. The note, which was attached to the petition and made a part thereof, bears on its back a cash credit of $750, of date July 24, 1923.
The petition alleges demand and nonpayment of the balance of said note with interest. Judgment is prayed for the sum of $3,017.50, with interest and 10 per cent. attorney's fee. The second amended answer is in the nature of a counterclaim, and consists of four counts, the first of which is a general denial. The second count alleges that on April 8, 1923, one Frank L. Summers was cashier of plaintiff bank; that the bank had become financially involved and on said date was taken in charge by the commissioner of finance of the state of Missouri; that said finance commissioner, together with one Jose H. Bradley, stated that certain irregularities through illegal entries were made by said Frank L. Summers as cashier, and that thereby the said bank had sustained a loss of $17,460.36, and requested that defendant pay into the bank that sum; that defendant was called to the bank without opportunity to consult with an attorney and without knowing anything of the nature of the business to be transacted, and was informed that, unless said money was put up the bank would be closed, to the humiliation of the family of the cashier; that defendant protested the payment of said sum, but finally, to protect his daughter and grandchildren, he, together with one Peter H. Summers, contributed to the financial re-establishment of the said bank; that the items composing said shortage and irregularities were in writing, and slowed, among other items, an indebtedness of plaintiff to the Macon County Bank of $9,000.29; that said sum was $5,900 more than the plaintiff owed the Macon County Bank; that plaintiff only owed the Macon County Bank the sum of $3,190, which defendant then offered to pay; that it was agreed that, if it was later found that the debt of plaintiff to the Macon County Bank was not $9,000.29, the difference would be returned to defendant.
The third count alleges that defendant was the father-in-law of Frank L. Summers, the cashier of the plaintiff bank, and that Peter H. Summers was the father of said cashier, and that the said Peter H. Summers owned a large portion of the capital stock of plaintiff bank; that Jose H. Bradley is now the president of plaintiff bank. The said count recites the facts as set out in count 2, and in addition states there were assets in the bank sufficient "to pay the claimed shortage of $17,460.36, consisting of notes not considered readily collectible; that, unless said sum was immediately forthcoming, the finance commissioner would close the bank to the humiliation and disgrace of the family, of its cashier ; that, in order to avoid this condition, defendant consented to and did contribute one-half of the claimed shortage to the re-establishment of the bank; that defendant called attention of plaintiff to the fact that Frank L. Summers was the owner of a balance on de posit in the Liberty Central Trust Company of St. Louis in the sum of $2,222.22, and it was agreed that, if defendant would pay the shortage of $17,460.29, he might collect the said deposit in the Liberty Central Trust Company, unhindered by plaintiff, but that the plaintiff, through the bank commissioner in charge, proceeded to and did collect the said sum of $2,222.22; that one-half of said sum belonged to defendant, and that he should be allowed to recoup himself therefrom in the sum of $1,111.11.
The fourth count reiterates the allegations of counts 2 and 3 relative to the shortage of $17,460.36, and further alleges that plaintiff, through the department of finance in charge of the bank, and through Jose H. Bradley and the officers and directors of the bank, presented to defendant and Peter H. Summers a statement in writing purporting to cover all irregularities and unauthorized loans, and requested them to pay the same; that a statement in writing representing the component items of said shortage was presented to defendant, and to said Peter H. Summers, with a request that they pay same; that said statement was signed by Sam Sharp, Jr., the examiner in charge of the bank; that said statement is filed and made a part of the answer; that the said commissioner and the officers of plaintiff bank represented that a large number of the slow notes would finally be paid, and that defendant would not lose anything by the payment of the $17,460.36 shortage, but that any balance due them from said sum would be paid them from the collection of said slow paper.
The answer further alleges that plaintiff did collect large sums of money on account of said slow paper, the amount of which is not known to defendant, for which defendant has requested plaintiff to account, and plaintiff has refused. The answer prays an accounting, and asks that a proper person be appointed to take testimony, and, if any money be found to be due defendant, that he have judgment therefor.
The answer alleges that, at the time of the presentation and request for payment thereof, the attention of the commissioner in charge and the officers and directors of the bank was called to the item in said statement, purporting to show an indebtedness on the part of plaintiff to the Macon County Bank in the sum of $9,090.29, and that defendant believed said item to be a mistake, or error, in said account, and requested said commissioner and the officers of plaintiff to deduct the amount of $5,938 from the said total of $17,460.36, for the reason that the same was an error; that defendant was then informed and believed that the actual indebtedness of plaintiff to the Macon County Bank, instead of being $9,000.29, was only $3,152.29, which latter amount defendant then offered to pay; that the books of the Macon County Bank would show that plaintiff did not owe the Macon County Bank the sum set forth and claimed by said statement, but only the sum of $3,152.29; that plaintiff bank and the examiner in charge thereof, and the officers and agents of plaintiff then present, thereupon agreed that, if defendant and Peter H. Summers would pay into plaintiff bank the amount set forth in the written statement aforesaid, if later found to be erroneous, then the plaintiff would refund to defendant and said Peter H. Summers such sum of money as represented the difference between the actual indebtedness to the Macon County Bank and the item of $9,090.29; that, relying upon said promises, defendant and Peter H. Summers paid the total amount of $17,460.36, one-half each; that defendant thereafter ascertained that, instead of plaintiff owing the Macon County Bank the sum of $9,090.29 as set forth in said written statement, the correct amount so owed was $3,152.29; that defendant then made demand on plaintiff to return him the sum of $2,969, being the amount of such overpayment made by him.
Defendant prays judgment against plaintiff in the sum of $2,969, with interest. The reply was a general denial.
was appointed referee by the court to hear evidence and report his finding. The referee qualified, heard evidence, and submitted his report and findings to the court.
Plaintiff objected to the introduction of any evidence under the answer and counterclaim upon the grounds that they did not state facts sufficient to constitute a cause of action against plaintiff, or proper matter of Counterclaim, and because the bank was not liable for the acts of the finance department, or any acts of the bank while in the hands of said department. The objection was overruled. Plaintiff objected to much of the evidence as introduced upon the same grounds. It appears of record that, after the evidence was all in, the witnesses discharged, and the cause argued over the objections of plaintiff, defendant filed his second amended answer, and, for the first time, alleged:
"If defendant did not make up said shortage, the matter would be called to the attention of the proper officers, and the cashier would be put behind the bars."
The amendment refers to the proof of threats alleged to have been indulged in by the officers of the bank in an attempt to induce defendant to pay the money to...
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