Citizens Bank v. Thompson

• Decision Date: 30 October 1939
• Docket Number: No. 19507.,19507.
• Parties: THE CITIZENS BANK OF LIBERTY, MISSOURI, APPELLANT, v. J.B. THOMPSON, RESPONDENT.
• Court: Missouri Court of Appeals

132 S.W.2d 700

THE CITIZENS BANK OF LIBERTY, MISSOURI, APPELLANT, v. J.B. THOMPSON, RESPONDENT.

No. 19507.

Kansas City Court of Appeals, Missouri.

October 30, 1939.

Appeal from the Circuit Court of Clay County. — Hon. James S. Rooney, Judge.

REVERSED AND REMANDED.

Ryland, Stinson, Mag & Thomson, and R.E. Rosenwald for appellant.

(1) The trial court committed error in refusing to give plaintiff's requested instructions for a directed verdict on both counts of defendant's counterclaim at the close of all the evidence. Yarber v. Connecticut Fire Ins. Co. (Mo. App.), 10 S.W. (2d) 957; Kazee v. K.C. Life Ins. Co. (Mo. App.), 217 S.W. 339. (a) The evidence is conclusive that defendant received and accepted the three Class B notes from the plaintiff, and that defendant subscribed for said notes. Glassbrenner v. Morgan (Mo. App.), 296 S.W. 201; Yarber v. Connecticut Fire Ins. Co. (Mo. App.), 10 S.W. (2d) 957; Burkett v. Gerth (Mo. App.), 253 S.W. 199; 5 C.J.S. 610, sec. 1647. (b) Defendant's retention of the three Class B notes not payable until August 1, 1953, precludes a recovery on defendant's counterclaim. 1 C.J.S. 1389; Barton Lumber Co. v. Gibson, 178 Mo. App. 699, 161 S.W. 357; O'Bryan v. Jones, 38 Mo. App. 90; Seeman v. Noble (Mo. App.), 294 S.W. 438; Barry v. Close, 215 Mo. App. 540, 257 S.W. 518. (2) The court erred in refusing to grant plaintiff a new trial on defendant's counterclaim because perjury resulting in an improper verdict was committed by defendant, and the verdict was the result of the passion and prejudice of the jury and contrary to the rational evidence in the case. R.S. Mo., 1929, sec. 1002; Seymour v. Tobin Quarries Co. (Mo. App.), 123 S.W. (2d) 628; Steele v. R.R., 265 Mo. 97, 175 S.W. 177; Bente v. Finley (Mo. App.), 83 S.W. (2d) 155; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 414, 441; Whitsett v. Ransom, 79 Mo. 258; Harper v. R.R., 186 Mo. App. 296, 172 S.W. 55; Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 76 S.W. 684; Ducoulombier v. Thompson (Mo.), 124 S.W. (2d) 1105; Yarber v. Connecticut Fire Ins. Co. (Mo. App.), 10 S.W. (2d) 957; Kazee v. K.C. Life Ins. Co. (Mo. App.), 217 S.W. 339; Burkett v. Gerth (Mo. App.), 253 S.W. 199. (3) Plaintiff is entitled to a new trial on defendant's counterclaim because the trial court abused its discretion in failing to grant plaintiff's application for separate trial of issues. R.S. Mo., 1929, sec. 951. (4) The court erred in giving instructions No. 4 and 5 at the request of the defendant. (5) This case should be reversed and remanded with instructions to enter up judgment for the full amount of the verdict in favor of the plaintiff, together with interest thereon, and against the defendant on both counts of defendant's counterclaim. Commerce Tr. & Savings Bk. of Chicago v. Schuler (Mo. App.), 27 S.W. (2d) 492; White Oak Coal Co. v. Squier Co. (Mo. App.), 219 S.W. 693; Hartman v. Frost-Trigg Lumber Co., 96 Mo. App. 288; Overbeck v. Mayer, 59 Mo. App. 289.

Lawson & Hale for respondent.

(1) No error was committed by the trial court in refusing plaintiff's demurrers to defendant's evidence in support of his counterclaims. Cunningham v. K.C. Pub. Serv. Co., 77 S.W. (2d) 161, 162; Francis v. Mo. Pac., 85 S.W. (2d) 915, 917. (2) The trial court did not err in refusing to sustain plaintiff's motion for new trial on the alleged grounds that the verdict of the jury resulted from perjured testimony and from bias and prejudice on the part of the jury. Sec. 1002, R.S. Mo., 1929; Gavin v. Forrest, 72 S.W. (2d) 177, 184; Brand v. Herbt et al., 45 S.W. (2d) 878, 881-2; David v. Quermann, 22 S.W. (2d) 58, 59; Robinson v. Railway, 38 S.W. (2d) 514, 517. (3) No error was committed by the trial court in refusing to grant separate trials in the case. Sec. 951, R.S. Mo., 1929; Hunt v. Railroad, 14 Mo. App. 160; Clark v. Railroad, 234 Mo. 396, 415. (4) The trial court did not err in failing to hold that defendant's acceptance of (2) notes precluded his recovery, because (a) No such issue was presented by the theory on which appellant tried the case in the trial court. Kelley v. United Mut. Ins. Assn., 112 S.W. (2d) 929, 931; Cameron Tr. Co. v. Leibrandt, 83 S.W. (2d) 234, 235; Peppas v. Mfg. Co., 71 S.W. (2d) 821, 825. (b) Because the facts in the instant case do not justify the application of the rule for which appellant contends in its brief in this court. 21 R.C.L., p. 59. (5) The trial court did not err in giving Instructions 4 and 5, or either of them. They are within the issues made by the pleadings and evidence and correctly declare the applicable law. (6) The fact that there may have been ambiguities, and even contradictions, in parts of defendant's testimony does not convict the trial court of error. The question of the credibility of the witnesses and the weight and value to be given to their respective testimony was properly submitted to and conclusively determined by the trial jury as approved by the trial court. In re Bearden, 86 S.W. (2d) 585, 592, and cases there cited.

KEMP, J.

In this case, plaintiff (appellant) brought suit against defendant on his renewal note, the principal of which had been reduced to $1200. Defendant (respondent) filed answer and counterclaim. His answer admitted the execution of the note, but alleged payment. There was no evidence offered in support of this defense, and on this phase of the case the court directed a verdict in favor of the plaintiff for principal and interest in the sum of $1292.23, to which action of the court no complaint is made.

Defendant's counterclaim is in two counts. In the first count, defendant alleged "that on the ____ day of December, 1933, plaintiff borrowed of defendant, and defendant loaned to plaintiff, the sum of One Thousand Dollars, on the express agreement with said plaintiff that said loan was for the term of one year, with interest thereon from date at the rate of five per cent per annum, and that the same, both principal and interest, would be fully repaid to defendant on the ____ day of December, 1934; that pursuant to said agreement, defendant delivered to plaintiff and plaintiff accepted, under the terms of said agreement, and has since retained and still retains said sum of One Thousand Dollars, but has wholly failed and refused to pay the same, or any interest thereon," for which sum with interest, judgment was prayed.

For his second count, defendant alleged that on December ____, 1933, plaintiff bank was not functioning as a banking institution, but was then taking steps for resuming banking operations, and that plaintiff bank represented to defendant that in connection with such arrangements it would be necessary for depositors of said bank to let their funds remain on deposit with plaintiff for some time after the plaintiff resumed the operation of its banking business; "that plaintiff represented to defendant that one Lelia Francis then had on deposit with plaintiff the sum of Five Hundred Dollars, which she was unwilling to consent to remain in said bank and that she had refused to agree to leave in said bank according to said requirements; that plaintiff requested defendant, for the accommodation of plaintiff, to sign a note to said Lelia Francis for said sum of Five Hundred Dollars and make it appear that defendant borrowed said sum of Five Hundred Dollars from said Lelia Francis, said bank representing to defendant that the retention of said sum by it was necessary to enable it to re-open its said business, and plaintiff assuring defendant that if he, defendant, would so execute said note and leave the proceeds thereof, to-wit, the sum of Five Hundred Dollars, in said bank for its use and benefit, that plaintiff would pay said note and interest thereon and hold defendant harmless by reason thereof."

Defendant further alleged that pursuant to said request and representations of plaintiff, defendant signed a note dated December 27, 1933, payable to the order of said Lelia Francis, for the sum of $500.00, due one year after date, with interest thereon at the rate of seven percent per annum, and that the bank received and appropriated and retained all of the proceeds of said note; that although the bank, pursuant to its agreement, paid, on two separate occasions, the interest accrued on said note, it later failed and refused to make any further payments either of principal or interest, and that defendant was, on the first day of December, 1937, required by said Lelia Francis, the then owner and holder of said note, to pay same, the principal and interest then amounting to $563.49, which sum defendant paid in satisfaction of said note, and for which sum judgment was prayed.

Plaintiff's answer to said counterclaim consisted of a general denial, and the further allegation "that the only indebtedness of plaintiff to defendant consists of three certain non-negotiable promissory notes, each in the principal sum of Five Hundred ($500.00) Dollars, and described as `Class B Capital Notes' of this plaintiff owned and held by defendant; that said notes are not due and payable and that plaintiff is not indebted to defendant except for said notes."

In support of the first count of his counterclaim, respondent testified to the facts as pleaded therein. He further testified that after turning over to the bank a $1000 bond, representing a $1000 loan, he made frequent demands on Mr. Boggess, the vice-president of the bank, to give him some evidence of the agreement on which this loan was made. He testified that finally Mr. Boggess told him that he would give him two $500.00 Class B notes, and that some three weeks after he had handed over the $1000 bond to the bank, he received through the mail two Class B notes, each in the principal amount of $500.00 These notes were dated January 9, 1934, and were not due until August 1, 1953. By their terms they were made subject to certain prior obligations of the bank, denominated as Class A notes which evidenced an indebtedness to a...