Butler County v. Boatmen's Sav. Bank

• Decision Date: 03 December 1901
• Citation: 165 Mo. 456,65 S.W. 716
• Parties: BUTLER COUNTY v. BOATMEN'S SAV. BANK.
• Court: Missouri Supreme Court

65 S.W. 716

165 Mo. 456

BUTLER COUNTY v. BOATMEN'S SAV. BANK.

Supreme Court of Missouri.

December 3, 1901.

RETRIAL — SINGLE ISSUE — JUDGMENT.

Where on a former appeal in the action all questions were determined against defendant, except one on which the evidence was conflicting, and the case was remanded to try that question, and on the retrial that question is found in plaintiff's favor, on ample evidence, a judgment in its favor should be affirmed.

In banc. Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Butler county against the Boatmen's Savings Bank. From a judgment for plaintiff, defendant appeals. Affirmed.

The following is the opinion in division No. 1:

"BRACE, P. J.

This is an appeal by the defendant from a judgment of the St. Louis city circuit court in favor of the plaintiff, and is the second appeal in the case. The opinion on the former appeal contains a full statement of the case. Butler Co. v. Boatmen's Bank, 143 Mo. 13, 44 S. W. 1047. After the case was remanded to the circuit court for new trial, the plaintiff filed an amended petition in two counts. The first count alleged: (1) The corporate organization of both respondent and appellant. (2) That on March 1, 1890, respondent, through Martin Ferguson, its agent for that purpose, deposited with appellant thirty thousand dollars of its new five per cent. funding bonds, with instructions in writing to appellant to deliver said bonds to Messrs. Wernse & Dieckman in exchange for an equal amount of six per cent. bonds of respondent which had been called for payment, and were payable at appellant's banking house, or for their face value in cash. In the event of cash being paid to appellant for any of said bonds, the appellant was directed to apply the same to the payment of the six per cent. bonds called for payment as they were presented for payment. (3) That the whole of said thirty thousand dollars of five per cent. bonds were delivered by appellant to said Wernse & Dieckman, who on the 1st day of March, 1890, paid into appellant's bank in cash the face value of said bonds. (4) That appellant failed and refused to apply the whole of said thirty thousand dollars in money to the payment of said six per cent. bonds, as directed, but only paid thereon twenty-three thousand two hundred and seventy-seven dollars and fifty cents, including several sums paid as interest on said six per cent. bonds, and that appellant has neglected and refused to account to respondent for the remainder, though often requested so to do. Judgment is then asked for six thousand seven hundred and twenty-two dollars and fifty cents, with interest from March 1, 1890. The second count alleged that on the same day the appellant received from said Wernse & Dieckman, as premium on said five per cent. bonds, the sum of nine hundred and thirty-three dollars, which sum appellant was...