Citizens Bank of Senath v. Douglass
| Decision Date | 02 December 1913 |
| Parties | CITIZENS BANK OF SENATH, Respondent, v. W. H. DOUGLASS et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
Tribble & Smith and W. H. Douglass for appellants.
(1) The court erred in sustaining a part of plaintiff's motion to strike out and striking out that part of plaintiff's petition relating to the assuming of this note in controversy by third parties. Leckie v. Bennett, 160 Mo.App 145. The petition alleged that plaintiff recognized as payor of this note, the parties assuming payment and contracted with them to extend the time of payment. (2) The court erred in admitting the note in evidence over defendants' objection because it was not the note sued on. It amounted to a failure of proof. Gray v. Race, 5 Mo.App. 553; Marcum v. Smith, 26 Mo.App. 460; Halpin M. Co v. School Dist., 54 Mo.App. 371; Ringer v Holtzclaw, 112 Mo. 519. (3) The amended answer tendered an equitable issue and thereby converted this action into an equitable proceeding, and the court was thereby required to try the equities thus tendered before trying the legal defense set up in the answer. Martin v. Turnbaugh, 153 Mo. 127; Withers v. Railroad Co., 226 Mo. 373. (4) The court's findings in equity are not binding upon the appellate court, but the case is practically tried by the appellate court de novo upon the record, irrespective of any rulings of the trial court. Plummer v. Knight, 156 Mo.App. 321. (5) The court erred in refusing to allow the defendants to read the letters which passed between Caneer while in St. Louis, and Storey, in charge of plaintiff bank at Senath, Missouri, after June 1, 1909, concerning the business of the bank, and also the letters which passed between Caneer, while in St. Louis and Chapman, while in charge of plaintiff bank at Senath, Missouri, concerning the business of the bank. The letters are competent on the question of agency. Clark & Marshall on Private Corp., page 2038, Sec. 663; same, page 2168, Sec. 710; same, page 2188, Sec. 716; same, pages 2191-4, Sec. 717; same, page 507, Sec. 190b; same, page 2161, Sec. 708; Clark & Skyles on Agency, pages 166-7, Sec. 64; same work, pages 144-5, Secs. 56 and 57; same, page 275, Sec. 109; same, page 318; Sec. 139; same, pages 335 to 9, Sec. 141a and b; same, pages 140-3, Sec. 55; Plummer v. Knight, 156 Mo.App. 321; Smith v. Richardson, 77 Mo.App. 422. (6) The court erred in allowing Caneer, the alleged agent or cashier of plaintiff bank, through whom the transactions in controversy were claimed to have been made, to testify that he had no authority to make the contract to extend the time of payment on said note or to do the other things alleged in the answer to have been done by him for said plaintiff bank, for the reason that his own admission in writing shows that he attempted to extend the time of payment of said note, or offered to do so, and he is therefore estopped to deny his authority. 63 Mo.App. 491-1; 179 Mo. 421; 31 Cyc. 1244; 105 Mo.App. 393; Clark & Marshall on Private Corporations, page 2174, Sec. 713a. (7) Instructions 1, 2 and 3, given by the court for plaintiff over defendants' objections, improperly declare the law. Leckie v. Bennett et al., 160 Mo.App. 145; Clark & Marshall on Private Corp., p. 2157, Sec. 705; Clark & Marshall on Private Corp., p. 2172, Sec. 712. And are inconsistent and irreconcilable with instructions 4 and 5 given for defendants. (8) The court erred in giving plaintiff's instruction No. 5, over defendants' objection. Marshall v. Bank, 76 Mo.App. 92; Clark & Marshall on Private Corp., p. 2188, Sec. 716. (9) Instructions 2, 3, 5 and 8, offered by defendants, properly declared the law under the evidence in this case.
Bradley & McKay for respondents.
(1) The trial court did not err in sustaining plaintiff's motion to strike out a portion of defendant's answer and appellant's citation of authority does not sustain their position, but on the contrary supports the court's action. Leckie v. Bennett et al., 160 Mo.App. 145; Babbitt v. Railway Co., 149 Mo.App. 439. (2) The attempted plea of estoppel is wholly insufficient to constitute an estoppel, either in law or equity, as it does not charge that any acts of the plaintiff induced the defendants to change their position, to their detriment. This is a necessary allegation of an estoppel and should have been both alleged and proved. Leckie v. Bennett et al., 160 Mo.App. 162; Blodgett v. Perry, 7 Mo. 263. (3) The trial court, having heard the witnesses and observed their demeanor and examined the mass of testimony, and exhibits and correspondence, between the parties, being therefore in a position to judge of the credibility of the testimony, the burden of proof also being on the defendant, and the trial court with the whole record before it having found for the respondent and against the appellants, on their purported equitable defense, this court will adhere to such findings, even though holding that it has a right to review the findings of fact, on the incomplete record, in this case, especially when as here there was ample evidence to sustain the findings of the trial court. Mathias v. O'Neal, 94 Mo. 530; Douglass v. The Douglass Bagging Co., 94 Mo. 234; Warren v. Nickels, 72 Mo.App. 486; Taleferro v. Evans, 160 Mo. 380; Smith v. Barr, 166 Mo. 406. (4) If Caneer agreed to extend the time of payment of said note sued on in this cause, and had full authority to do so, from the plaintiff bank, all of which respondent denies, it would not have released defendants, appellants herein, for the note is one which provides that the time may be extended without notice, and all parties to said note are joint makers, and such extension was fully authorized and would not constitute a novation as appellants contend. Leckie v. Bennett et al., 160 Mo.App. 159; Babbitt v. Railway Co., 149 Mo.App. 439. (4a) Both the amended and supplemental answers ask for a cancellation and return of the note sued on by virtue of the legal defense of novation and the equitable defense of estoppel, which would in no event transpose an action at law to an action in equity. Again, the prayer is no part of the petition, and nowhere in the answer are sufficient facts pleaded to transpose this action at law to one in equity. Easley v. Prewitt et al., 37 Mo. 361; Brown v. Home Savings Bank, 5 Mo.App. 113; 16 Ency. of Pl. & Pr., page 776. The fact that an equitable defense is interposed in an action at law, it has been held, does not convert the suit from an action at law to one in equity. Wolf v. Schaffer, 74 Mo. 154; Carter v. Prior, 78 Mo. 222. The circuit court may administer both legal and equitable rights and remedies in the same action, and is armed with discretionary powers to direct separate trials where the nature of the issues on the pleadings require them, or where the parties demand separate trials, before the trial is begun, and it would be discretionary with the court which cause is tried first, unless the parties to the action demanded the equity branch tried first, which was not done in this cause. Stones v. Perkins, 217 Mo. 606; Smith v. Barr, 166 Mo. 392; Spur v. Burlingame, 61 Mo.App. 75. (5) The instructions 1, 2 and 3 given by the court for the plaintiff properly declares the law and it was no error to give them, but would have been error to reject them. Leckie v. Bennett et al., 160 Mo.App. 145. If the instructions 4 and 5 given for the defendant are inconsistent with plaintiff's instructions 1, 2 and 3, which respondent denies, and plaintiff's instructions properly declare the law, it was still not error to give them, for the defendants having had the advantage of an erroneous instruction, given at their request, cannot now complain. Baker v. Railroad Co., 122 Mo. 597; Reardon v. Railroad, 114 Mo. 384; Wilkins v. Railroad, 110 Mo. 105. (6) The court did not err in giving the plaintiff's instruction No. 5. It properly declares the law, and appellant's citations of authority sustain the court's rulings. Marshall v. Bank, 76 Mo. 92; R. S. 1909, Sec. 1112; People's Savings Bank v. Hughes, 62 Mo.App. 576. (7) Instructions 2, 3, 5 and 8 offered by the defendants do not properly declare the law, besides there was no evidence upon which to base said instructions, and hence the court properly refused them.
This is an action by plaintiff bank upon a promissory note executed by the defendants. Plaintiff had judgment for the amount remaining unpaid on the note, with accrued interest thereon, and the defendants have appealed.
The note in suit was originally for the sum of $ 2250, dated January 10, 1906, due March 1, 1906, and payable to the order of plaintiff. It bore interest at the rate of eight per cent per annum, and contained the following provision: "Makers and endorsers of this note hereby severally waive presentment of payment and notice of nonpayment, protest and consent that time of payment may be extended without notice." A notation appeared upon the back of the note to the effect that the maturity thereof had been extended to July 1, 1910, "interest paid."
The petition declares upon the note, admits the payment of $ 700 thereon on November 30, 1908, and prays judgment for $ 1550, with interest at the rate of eight per cent per annum from March 1, 1909.
The amended answer admits the execution of the note by defendants; avers that, on November 30, 1908, not only $ 700 was paid upon the principal, but that all interest accrued to that date was paid thereon, leaving a balance due at said date of $ 1550. And it is averred that defendants Jas. M Douglass and A. T. Douglass were but accommodation makers for...
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