Beeson-Moore Stave Co. v. Clark County Bank

• Decision Date: 15 October 1923
• Docket Number: 172
• Parties: BEESON-MOORE STAVE COMPANY v. CLARK COUNTY BANK
• Court: Arkansas Supreme Court

254 S.W. 667

160 Ark. 385

BEESON-MOORE STAVE COMPANY v. CLARK COUNTY BANK

No. 172

Supreme Court of Arkansas

October 15, 1923

Appeal from Clark Circuit Court; George R. Haynie, Judge; reversed in part.

Judgment in favor of bank affirmed. Judgment in favor of appellant reversed and cause remanded.

Mehaffy Donham & Mehaffy, for appellant.

1. Gosney, it appears, filed no motion for new trial, and presented no bill of exceptions. Alleged errors, based on admissions of testimony at the trial, or on instructions given and refused, cannot be considered. 148 Ark. 156; Id. 653; 140 Ark. 218; 130 Ark. 538; 129 Ark. 86; Id. 217; 143 Ark. 463; 149 Ark. 669.

2. The appellee bank is liable to the appellant, under the facts in the case. It had the means of knowing, and did know, whether the indorsements on the checks were genuine or not. 5 R. C L. 554; Id. 552; 137 Ark. 252; 141 Ark. 414; 148 Ark. 14.

3. Court erred in refusing instructions 9 and 10 requested by appellant. 142 Ill. 296; 148 Ark. 604; 97 N.Y.S. 274; 7 C. J 686; 115 Ark. 326; 73 Ark. 566; 3 R. C. L. 542-543; 1 Morse on Banks and Banking, 4th ed., 483; L. R. A. 1917-A, 145; 137 Ark. 258, 259; 36 Am. St. Rep. 81.

J. S. Townsend, for cross-appellant Gosney.

Gosney's theory of the case is supported not only by his own testimony, but also that on the part of the appellant. He was entitled to have that theory submitted to the jury, which was the judge of the weight and credibility of the witnesses. The court erred in directing the verdict. 98 Ark. 334; Id. 370; 105 Ark. 136, and cases cited.

OPINION

WOOD, J.

The Beeson-Moore Stave Company, a corporation of Arkansas (hereafter called appellant), instituted this action against the Clark County Bank (hereafter called bank), and J. Gosney. The appellant alleged that, pursuant to an agreement with Gosney, it issued various voucher checks to certain payees for different amounts, all of which are set forth, amounting in the aggregate to the sum of $ 4,833.91; that these checks were sent to Gosney to be delivered to the payees therein named; that it was fraudulently represented to appellant that the various sums for which checks were issued were due to the payees for labor and service performed; that appellant did not owe the payees any sum, but, if so, the sums were less than the amounts alleged in the checks; that Gosney did not turn over the checks to the payees, but, without right and without their consent, forged the names of the payees to the checks and took credit in his own name for the amounts of the checks; that the bank, without the consent of the payees, permitted Gosney to cash the checks and take credit for same in his own name; that the bank accepted the checks and stamped on the back of them the following: "Pay any bank, banker, bankers or trust company, or order (all prior indorsements guaranteed)__192__. Clark County Bank, Gurdon, Arkansas. F. M. Holt, cashier." The appellant alleged that, by reason of these acts of Gosney and the bank, it had been damaged in the sum above named, for which it prayed judgment.

The bank, in its answer, categorically denied all the allegations of the complaint, and set up that, if the checks were handled as alleged, the appellant ratified such handling by Gosney; that appellant knew, immediately after the checks were paid in January, 1920, and at all times thereafter, that the checks were being handled as alleged in the complaint, and appellant paid same with such knowledge, and failed to notify the bank that it objected thereto; that appellant continued to deliver the checks to Gosney for more than one year with full knowledge of how they were being handled by Gosney, without notifying the bank that it objected thereto; that, if it had notified the bank within a reasonable time after it honored the checks in January, 1920, the bank would have refused to further honor such checks, and could and would have recovered the money paid Gosney on such checks; that Gosney is insolvent. The bank further alleged that, after the appellant knew that Gosney had cashed the checks as alleged, appellant paid Gosney large sums of money from time to time; that all of the checks were charged to Gosney by the appellant and had been paid by Gosney. Therefore the bank prayed that appellant's complaint be dismissed.

Gosney answered, adopting the answer of his co-defendant, as far as applicable, and set up, in a cross-complaint, that he entered into a written contract with the appellant to buy timber to make staves or have them made and shipped to the appellant, for which he was to receive a stipulated price specified in the contract; that the appellant agreed to advance all money necessary to carry out the contract and charge the same to Gosney's account; that, in pursuance of the contract, he had delivered to the appellant staves which, at the price agreed upon, amounted to the sum of $ 8,235.20; that, in addition to the price of the staves, he had incurred expense in bucking the same, amounting to $ 1,699.13; that the appellant was indebted to him in the sum of $ 600, under the terms of the contract between them, for staves purchased by him for appellant at Antoine, Arkansas; that appellant was indebted to him in the sum of $ 879.36 under the contract for cutting and yarding logs; that appellant was indebted to him in the sum of $ 2,000 for 200,000 feet of stumpage for staves on the Chancellor & Thornton land, making a total of $ 11,613.69 due him by the appellant; that against this sum appellant was entitled to certain credits. He prayed that, after giving these credits, he have judgment for the balance.

The appellant answered the cross-complaint of Gosney, denying all of its allegations.

The testimony of the respective parties adduced to sustain the contentions as set forth in their pleadings is quite voluminous, and no useful purpose could be served by setting it forth in detail. Suffice it to say there was testimony which made it an issue for the jury to determine whether or not Gosney was indebted to the appellant, as alleged in its complaint, or whether the appellant was indebted to Gosney, as alleged in his cross-complaint. At the conclusion of the testimony the court instructed the jury, at the instance of the appellant, to find against Gosney on his cross- complaint. Gosney excepted to the giving of this instruction, and made the ruling of the court in giving the same one of the grounds of his motion for a new trial.

The issue between the appellant and the bank was submitted to the jury, on instructions given at the instance of the appellant and the...