Collins v. People's Bank of Salisbury

• Decision Date: 01 December 1930
• Docket Number: No. 17020.,17020.
• Citation: 33 S.W.2d 139
• Parties: COLLINS v. PEOPLE'S BANK OF SALISBURY.
• Court: Missouri Court of Appeals

33 S.W.2d 139

COLLINS v. PEOPLE'S BANK OF SALISBURY.

No. 17020.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Chariton Circuit Court, Chariton County; Paul Van Osdol, Judge.

"Not to be officially published."

Action by E. T. Collins, executor, etc., against the People's Bank of Salisbury. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Gilbert Lamb, of Salisbury, for appellant.

R. P. Stone, of Eldon, and John D. Taylor, of Keytesville, for respondent.

BLAND, J.

This is an action by the executor of the last will and testament of one O. L. Masterson to recover the sum of $972.00 as interest claimed to be due by the defendant bank to Masterson's estate on an alleged contract made by and between Masterson in his lifetime and the bank, said contract being for the payment of interest on Masterson's account in the bank. There was a verdict and judgment in favor of plaintiff in the sum of $810.00 and defendant has appealed.

The agreement between Masterson and the bank was made on behalf of the bank by one Grizzell, its president or cashier. At the time of the trial both of these men were dead. The evidence introduced by plaintiff substantially was all documentary and is as follows:

That for sometime prior to the first day of March, 1924, Masterson was a depositor in defendant bank; that Masterson had on deposit the following sums in multiples of $1,000.00; from March 1st, 1924 to March 6th, 1924, $7,000.00; from the latter date to April 23rd of that year, $5,000.00; from the last mentioned date to July 9th of that year, $4,000.00; from the last mentioned date to October 9th of that year, $3,000.00; from the last mentioned date to December 18th of that year, $19,000.00 and from the last mentioned date to March 1st, 1925, $18,000.00. These are not the exact sums that were on deposit during that time, as the amounts in each instance were in excess of those amounts, but the odd hundred dollars or cents are not mentioned by us because no interest is claimed on anything but deposits of $1,000.00 or multiples thereof.

On February 6th, 1925, Grizzell wrote Masterson as follows:

"We are in receipt of your letter of a few days ago, and we also received the one you wrote ten days or more ago, and you will please pardon our not making a reply sooner.

"In regard to the notes of Mr. Kunze's desire to say same was paid sometime ago, as you will notice from the enclosed statement of your account with us. If I remember right, Lute, we promised you when you were here to make you a statement of your account at the end of each month, but I am sure since receiving your letter that this has not been done or you would have been advised of this being paid. We are handling this in the same manner that we have been handling your business heretofore, and the interest will be credited about March 1st. Of course, you will understand that the interest on the $1500 of the Kunze loan was paid up to and including the 9th of October."

On May 16th, 1925, Grizzell wrote the following letter to Masterson:

"Am in receipt of your letters and you will please pardon my not getting an answer to you sooner, but was a little negligent in getting same attended to.

"Am enclosing herewith your account balanced to date which shows from credits on same interest paid to March 1st.

"Interest on $15,000.00 from Nov. 1st to March 1st, $300.00, interest on $3,000.00 for 1 yr. $180.00 making the $480.00 deposit and the $780.00 deposit was the Kunze interest on the $13,000.00 loan."

The enclosed account mentioned in Grizzell's letter of May 16th, shows that $780.00 was actually credited to Masterson's account on March 3rd, and the $480.00 on April 4th.

The evidence further shows that Masterson's estate amounted to between $50,000.00 and $60,000.00. The only evidence introduced on the part of the defendant was the original petition filed in this case wherein plaintiff alleged that the agreement was that the bank was to pay Masterson 6% per annum "on average daily balances."

The amended petition alleges that Masterson died on December 1st, 1925. It prays judgment for interest from the 1st day of March, 1925 to the 24th day of January, 1926, the latter date being the day to which it is alleged the Masterson account with the bank continued. The amended petition alleges that the bank agreed to pay Masterson for the use of his money deposited with it "interest at the rate of 6% per annum on daily balances of $1,000.00 and multiples thereof; that all interest due from said bank to said Masterson was paid till the first day of March, 1925; that on the first day of March, 1925, there was on deposit in said bank money belonging to the said Masterson in the amount of $18,919.11; that said money continued on deposit in said bank under the contract and agreement, as aforesaid, from the first day of March, 1925, until the 24th day of January, 1926."

It is insisted by the defendant that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence, offered at the close of all of the testimony, for the reason that there was no proof of the contract alleged and that the verdict and judgment are based on guess, speculation and conjecture.

Plaintiff's theory of the tendency of the proof is that the letter of Grizzell, written to Masterson on February 6th, 1925, shows that it was in answer to letters received by the writer from Masterson, and suggests that Masterson had written Grizzell "about a former contract with the bank to pay him interest on the money to his credit in said bank"; that the letter of Grizzell written on February 6th, 1925, when it states: "We are handling this in the same manner that we have been handling your business heretofore and the interest will be credited about March 1st," has reference to interest owing by the bank to Masterson and not a collection made by it for him; that if this were not true Grizzell's last mentioned letter would have referred to the source of the collection made for Masterson by the bank, as it did the Kunze loan, and the letter did not state that the interest would be credited "when collected," which would have been done had it not been interest owed by the bank to Masterson, but stated that it would be credited about March 1st; that an inference may be drawn that the letter written by Grizzell to Masterson on May 16th, 1925, was in answer to inquiries made by Masterson about the interest on money he had on deposit in the...