Boydston v. Bank of Camden Point

• Decision Date: 29 April 1940
• Docket Number: No. 19601.,19601.
• Citation: 141 S.W.2d 86
• Parties: BOYDSTON v. BANK OF CAMDEN POINT.
• Court: Missouri Court of Appeals

141 S.W.2d 86

BOYDSTON v. BANK OF CAMDEN POINT.

No. 19601.

Kansas City Court of Appeals. Missouri.

April 29, 1940.

Rehearing Denied June 10, 1940.

Appeal from Circuit Court, Platte County; R. B. Bridgeman, Judge.

Action by Alvin Boydston, guardian and curator of the estate of Henry Boydston, incompetent, against the Bank of Camden Point to recover damages for an alleged wrongful refusal by defendant to pay a check. From an order sustaining defendant's motion for new trial after there had been a verdict for plaintiff, plaintiff appeals.

Affirmed.

Jay B. Wilson, A. D. Gresham, and Walter J. Gresham, all of Platte City, for appellant.

James H. Hull, John W. Coots, Jr., and David R. Clevenger, all of Platte City, for respondent.

CAMPBELL, Commissioner.

Plaintiff's petition is in two counts; the first charges that Alvin Boydston is the duly appointed, qualified and acting guardian and curator of the person and estate of Henry Boydston, an incompetent, under the order of the probate court of Platte County, Missouri; that said incompetent had a checking account in the defendant bank in the sum of $1,070 on October 14, 1938; that on that day plaintiff, as such guardian and curator, drew a check on defendant bank, payable to the Wells Banking Company of Platte City, Missouri, in the amount of $1,000, which was duly presented to defendant and payment thereof refused; that said refusal was wrongful and without any lawful reason, to plaintiff's damage in the sum of $1,000, for which sum, with interest, judgment was prayed. The second count repleaded the allegations of the first and sought to recover damages, including attorney's fees, for the alleged refusal to pay the check.

The defense alleged in the answer was that on January 15, 1938, the incompetent had a checking account in the defendant bank in the sum of $2,318.82; that on March 1, 1933, the incompetent and Mary French executed to defendant a note, due three years from date, which amounted to $1,077.56 on January 15, 1938; that on said day Alvin Boydston refused to pay said note, and thereupon defendant set off the amount of said note, $1,077.56, against said deposit; that thereafter plaintiff drew checks against said checking account which reduced the amount thereof to $1,090.87 on August 3, 1938, at which time plaintiff was informed of the balance remaining in the account; that thereupon plaintiff, by check, drew from said account the last named sum and thus closed the account; that when plaintiff drew the check mentioned in the petition defendant was not indebted to plaintiff in any sum.

The answer to the second count was a general denial.

The reply denied that the note mentioned in the answer was signed by the incompetent; that if the note were signed by him he signed "as surety and not as maker, jointly or otherwise"; that defendant on March 1, 1933, made a loan to Mary French in the amount of $1,050, which was secured by a deed of trust executed by her on land in Platte County; that at the time defendant set off the $1,077.56 the defendant had a demand on said note pending against the estate of the incompetent; "that at the time of the making of the note mentioned in defendant's answer by Mary French and Henry Boydston, on the first of March, 1933, the said Henry Boydston was on that date and a long time prior thereto mentally incompetent and did not and could not realize the obligation, if any, he then and there might have assumed thereby, if any."

On trial to a jury the plaintiff had a verdict on the first count in the amount of $1,008.16 and on the second in the sum of $75.

Thereafter, defendant's motion for new trial was sustained upon the grounds (1) the verdict was against the law; (2) the court erred in refusing defendant's peremptory instruction; (3) in refusing defendant's instruction 2-A; (4) in giving plaintiff's instructions A, B, C, D and E; (5) in excluding evidence offered by defendant.

The plaintiff has appealed.

The evidence shows Alvin Boydston was appointed guardian and curator of Henry Boydston, incompetent, by the probate court of Platte County on February 23, 1937; that at that time the incompetent had on deposit in a checking account in the defendant bank the sum of $2,983.55, which amount was transferred to the plaintiff as guardian and curator; that Mary French and Henry Boydston on March 1, 1933, executed to defendant a note in the amount of $1,050, due in three years. Mary French gave a deed of trust on her real estate to secure the payment of the note. The defendant on January 15, 1938, charged the above mentioned checking account with the amount of the note, namely, $1,077.56. Plaintiff on August 3, 1938, drew a check against said account for $1,090.87, the exact amount of the balance of the account. Subsequently on October 14, 1938, plaintiff drew the $1,000 check and which, upon presentation, the bank refused to pay upon the ground of insufficient funds.

The plaintiff contends defendant has no right of setoff for the reasons (1) there was no proof the incompetent executed the note; (2) the deposit carried by the guardian was in custodia legis and was carried for a specific purpose; (3) the note was secured by deed of trust and incompetent was a surety; (4) that defendant waived any right of setoff it may have had.

The claim that there was no proof the incompetent executed the note cannot be sustained. The closing paragraph of the answer quoted above alleged he signed the note and sought to avoid the obligation thereof upon the ground he lacked mental capacity to make the...