Brandt v. Farmers Bank of Chariton County
| Decision Date | 05 September 1944 |
| Docket Number | 39006 |
| Parties | C. H. Brandt, Appellant, v. Farmers Bank of Chariton County et al |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court; Hon. Dimmitt Hoffman Judge.
Affirmed.
W H. Meschede and J. A. Collet for appellant.
(1) Defendants' assignment of error as set out in their motion for new trial in paragraphs one to six inclusive have all been ruled against defendants and, as we think, can now be regarded as settled. Carter v. Farmers Bank, 232 Mo.App. 705, 108 S.W.2d 152; Taylor v. Farmers Bank, 135 S.W.2d 1108; Taylor v. Farmer Bank, 161 S.W.2d 243. (2) Plaintiff's instructions one and two, complained of in defendants' motion for new trial, have heretofore been approved by this court and the Kansas City Court of Appeals. See authorities cited under Point (1). (3) Defendants' Instruction 4, refused by the court, was in effect the same as defendants' Instruction 2 given by the trial court in the case of Taylor against Farmers Bank which was by this court and the Kansas City Court of Appeals condemned. The only difference between defendants' Instruction 4, as reported in this case, and defendants' Instruction 2 in the Taylor case is the insertion of the word "sole" before the world "benefit" in the concluding part of that instruction and the record in this case showing conclusively there could not have been any residue left over from the sale of the Welch land after the payment of the $ 10,000 owing to the bank and the money this plaintiff and his associates advanced in reducing the Welch debt, the holding of the Welch land in trust by Carter could well be considered for the sole benefit of Carter and his associates including this plaintiff. Furthermore this instruction entirely ignored the claim of plaintiff that the bank was obligated to hold him and his associates harmless. (4) Defendants' plea of estoppel as presented in their answer and which was submitted to the jury by plaintiff's Instruction 3 has been ruled against defendants in the following cases. Taylor v. Farmers Bank, 135 S.W.2d 1108; Taylor v. Farmers Bank, 161 S.W.2d 243. (5) Defendants' Instruction 3 offered and refused by the court was properly refused because the issue of estoppel as there presented had already been ruled against defendants. Taylor v. Farmers Bank, 135 S.W.2d 1108; Taylor v. Farmers Bank, 161 S.W.2d 243. (6) The ground upon which the special judge granted defendants' motion for new trial, as shown by memorandum opinion, found as an appendix to this brief, was not an issue in the case on trial. An issue is made by the facts pleaded and cannot be aided by the conclusion of the pleader. Taylor v. Farmers Bank, 135 S.W.2d 1108; Taylor v. Farmers Bank, 161 S.W.2d 243; 49 C.J., pp. 17, 43; State of Alabama v Burr, 29 Law Ed. 435; Field v. Railway Co., 76 Mo. 614; Coulter v. Independence, 168 Mo.App. 710; Lewis v. McMahon & Co., 307 Mo. l.c. 567; Snow v. Ferril, 8 S.W.2d l.c. 1017; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l.c. 397; Beam Co. v. Bakewell, 224 Mo. l.c. 222; Brandt v. Farmers Bank, 177 S.W.2d 667. (7) A judgment of the court must be responsive to the issues tendered in the pleadings. Dry Goods Co. v. Sally, 198 Mo. 682; Lewis v. McMahon & Co., 307 Mo. l.c. 567; Snow v. Ferril, 8 S.W.2d l.c. 1017; Kilpatrick v. Wiley, 197 Mo. l.c. 171; Black v. Early, 208 Mo. l.c. 313; Spindle v. Hyde, 147 Mo. l.c. 51; Nusen v. Natl. Pigment & Chemical Co., 145 S.W.2d 410. (8) Facts not pleaded are not admissible in evidence and if admitted will be disregarded and will not sustain a recovery. Bird v. Rowell, 180 Mo. l.c. 427. (9) The language of Judge Leedy in Taylor v. Farmers Bank, 161 S.W.2d 243, upon which the special judge based his finding of sustaining defendants' motion for new trial was not decisive of any issue presented by the pleadings in that case and must be regarded as arguendo only. Musser v. Musser, 281 Mo. l.c. 663. (10) The rule of pleading contended for by respondents, that is that the issues in a suit may be made by the conduct of the parties in the trial, has been adopted by some courts but only in cases where the parties to the trial contested the facts which made up the issue, and is not applicable to a case, like the one at bar, where meager facts which might tend to establish an issue, incidentally appear in evidence and are not contested. Scott v. St. Louis-S.F. Ry. Co., 52 S.W.2d 459; McCullough v. Chicago, R.I. & P. Ry. Co., 88 S.W.2d 400. (11) To have permitted defendants to so amend their answer as to set up the defense now contended for would have been the introduction of a new and additional defense not pleaded in their answer. Under such circumstances the rule adopted by some courts that where a petition is defective because of the omission of some necessary averment, the defect is waived, if evidence touching the omitted matter be received without objection, is without application here. Gilliland v. Bondurant, 51 S.W.2d l.c. 569.
Fred Bellemere and Roy W. Rucker for respondents.
(1) This court will rehear and determine this case as though jurisdiction had been obtained by the process of an ordinary appeal. Block v. United States Fid. & Guar. Co., 316 Mo. 278. (2) Where the court failed to state the ground upon which defendants' motion for new trial was sustained, and plaintiff appealed from the order, the judgment of the lower court will not be disturbed if it was proper on any of the grounds set out in the motion. King v. Insurance Co., 164 S.W.2d 458; Dove v. Railway Co., 163 S.W.2d 548. (3) While a memorandum opinion of the trial court is not part of the record proper nor binding upon an appellate court, it frequently aids in directing attention to the theory upon which the motion for new trial was sustained. McCune Estate v. Daniel, 76 S.W.2d 403; Weis v. Wanstrath, 149 S.W.2d 442. (4) Plaintiff was not entitled to recover, and defendants' instruction in the nature of a demurrer should have been given, because: It is admitted that there is no record of the bank disclosing that the Board of Directors ever consented to reimburse plaintiff for any loss he might have sustained in connection with the Welch loan. Sec. 7964, R.S. 1939. (5) There was a total failure of proof to sustain the allegation that there was an express agreement and understanding between plaintiff and the officers of the bank under the terms of which the bank agreed to reimburse plaintiff in the event of a loss. Phillips v. Thompson, 35 S.W.2d 382; Law Reporting Co. v. Laredo Electric & Ry. Co., 255 S.W. 918; Sims v. Dunham, 203 S.W. 652; Krelitz v. Calcaterra, 33 S.W.2d 909; Cole v. Armour, 154 Mo. 333; Deibel v. Jefferson Bank, 200 Mo.App. 541; Anvil v. Kaiser, 127 Mo.App. 141. (6) Plaintiff was not entitled to recover upon either an express or implied contract because the whole transaction mentioned in plaintiff's petition was void ab initio, and defendants' demurrer at the close of plaintiff's case should have been sustained, because the law does not countenance any transaction between the directors of a banking corporation and the bank, where the self interest of the directors is involved, and such transactions are void on the ground of public policy. Frankford Exchange Bank v. McCune, 72 S.W.2d 155; Hill v. Rich Hill Coal Mining Co., 119 Mo. l.c. 23. (7) The court should have given defendants' instruction in the nature of a demurrer, because if plaintiff ever had a cause of action it was bared by the five-year statute of limitations. Bisesi v. Farm & Home Savs. & L. Assn., 78 S.W.2d 871; Garrett v. Conklin, 52 Mo.App. 654; Petty v. Tucker, 166 Mo.App. 98. (8) The lower court committed error in failing to sustain defendants' demurrer when it affirmatively appeared that the common creditors of the bank would not be paid in full. Asher v. West End Bank, 131 S.W.2d 549; Taylor v. Farmers Bank of Chariton County, 161 S.W.2d 243. (9) The trial court committed reversible error in refusing defendants' Instruction 3. Asher v. West End Bank, 131 S.W.2d 549; Taylor v. Farmers Bank of Chariton County, 161 S.W.2d 243. (10) The court committed error in refusing defendants' Instruction 4, which was the converse of plaintiff's main instruction. Wilson v. Thompson, 133 S.W.2d 331; State ex rel. v. McKay, 30 S.W.2d 83. (11) The court committed error in giving plaintiff's Instruction 2. Bisesi v. Farm & Home Savs. & L. Assn., 78 S.W.2d 871; Garrett v. Conklin, 52 Mo.App. 654; Petty v. Tucker, 166 Mo.App. 98. (12) The court committed error in giving plaintiff's Instruction 3 because said instruction wholly ignores the rights of the depositors in and creditors of the bank. Taylor v. Farmers Bank of Chariton County, 161 S.W.2d 243. (13) Even though this court should hold that defendants' answer did not allege the insolvency of the bank, the pleading will be treated as amended to conform to the evidence of insolvency, which was admitted without objection. Sternkopt v. Kawein, 63 S.W.2d 443; Ford v. Wabash Ry. Co., 300 S.W. 769.
This is an appeal from an order granting a new trial to defendants after a verdict for plaintiff in the sum of $ 2927.50. The action was instituted pursuant to what is now Sec. 7932, R.S. 1939, to establish a rejected claim in the sum of $ 4410.72 against the assets of the Farmers Bank of Chariton County. The bank was and is in charge of and being liquidated by the Commissioner of Finance. Plaintiff was a director of the bank and his claim is based upon the alleged advancement of $ 2927.50 by him to the bank on June 25, 1927. Plaintiff's appeal was duly taken to the Kansas City Court of Appeals, where the order granting the new trial was set aside and the cause remanded with directions to the trial court to reinstate...
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