Caldwell v. Farmers' & Merchants' Bank of Vandalia

• Decision Date: 03 February 1903
• Citation: 100 Mo. App. 23,71 S.W. 1093
• Court: Missouri Court of Appeals
• Parties: CALDWELL v. FARMERS' & MERCHANTS' BANK OF VANDALIA.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 1093

100 Mo. App. 23

CALDWELL v. FARMERS' & MERCHANTS' BANK OF VANDALIA.^*

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

WITNESSES—IMPEACHING ONE'S OWN WITNESS—APPEAL—AFFIDAVITS ON APPEAL —CREDIBILITY OF WITNESS.

1. A party cannot impeach the reputation for veracity of his own witness.

2. The court of appeals, in determining whether a new trial shall be awarded, cannot consider affidavits impeaching a witness' reputation for veracity, and presented for the first time to such court.

Appeal from circuit court, Audrain county; Elliot M. Hughes, Judge.

Action by C. C. Caldwell against the Farmers' & Merchants' Bank of Vandalia. From a judgment for defendant, plaintiff appeals. Affirmed.

W. W. Botts and Geo. Robertson, for appellant. P. H. Cullen and J. D. Hostetter, for respondent.

GOODE, J.

This proceeding was instituted to have canceled a certain promissory note for $1,700, dated July 3, 1900, due four months after date, and executed on the 9th day of July by the plaintiff to the defendant; also a bill of sale on 40 head of cattle, executed by the plaintiff to secure said note; also for an accounting. The plaintiff, according to the petition and the proof, did business with the defendant bank for some years prior to January 1, 1898, and, as the plaintiff was a stock dealer, his account was an active one, numerous transactions in the way of deposits, checks, and loans occurring. The ground on which the cancellation of said note and bill of sale is asked is that they were executed without consideration, plaintiff alleging that he was induced to give them by the representation of W. L. Wright, the cashier of the bank, that plaintiff had overdrawn his account to the amount of $1,700, whereas in truth his account was not overdrawn at all. Besides asking relief against said instruments, the petition attempts to state an account of the transactions between the parties from the 1st day of January, 1898, until July 9, 1900, alleging deposits by the plaintiff, which the bank admits were made, and seven deposits disputed by the bank. Plaintiff further states that he drew checks on the bank, with which he was properly charged, but that he was improperly charged with other checks never drawn, so that there was a difference between the parties of $4,503.93 as to the actual state of the account. The petition further charges that when said $1,700 note was demanded by the cashier of the bank, plaintiff was doubtful whether he owed an overdraft, and declined to execute the note until the cashier gave him a receipt against the note containing a statement that the bill of sale would not be enforced unless, on further examination of the plaintiff's account, it appeared he did in fact owe the amount of the note. The answer denied the allegations of the petition, except as to the execution of the note and bill of sale, stated at length and in detail the transactions between the parties from December, 1897, to February, 1901, and showed a balance due the bank of $76.78, for which judgment was prayed. The answer further alleged said note was given for a good consideration, was induced by no false representation, that defendant afterwards made a payment on it and executed a bill of sale of the cattle to secure it, and prayed judgment for the amount of the note and the enforcement of the security. A replication was filed, denying the allegations of the answer, and insisting on the truth of those made in the petition. Many of the disputed matters in the account seem to have been cleared up by the testimony to the satisfaction of both parties, so that finally plaintiff relied only on the following charges: First. That said $1,700 note was obtained by fraud, and without consideration, inasmuch as plaintiff was not then indebted to the bank at all. Second. That on January 16, 1897, plaintiff borrowed $1,000 from one William Wood, and placed the check therefor in the bank for deposit to his credit, but, without authority, the bank placed $400 to his credit, and $600 to the credit of one J. R. Bondurant. Third. That on April 12, 1898, the bank paid said Bondurant $800 on a check drawn by him, and charged the sum to plaintiff's account, without the authority, knowledge, or consent of the plaintiff. Fourth. That on June 19, 1898, plaintiff drew a check on another bank in...