Donijanovic v. Hartman

• Decision Date: 14 December 1912
• Citation: 152 S.W. 424,169 Mo. App. 204
• Parties: DONIJANOVIC v. HARTMAN.
• Court: Missouri Court of Appeals

152 S.W. 424

169 Mo. A. 204

DONIJANOVIC v. HARTMAN.

St. Louis Court of Appeals. Missouri.

December 14, 1912.

1. BANKS AND BANKING (§ 154) — ACTION BY DEPOSITOR — QUESTION FOR JURY — REPAYMENT.

On evidence in an action to recover the balance of a deposit from a private banker, held, that the question whether the deposit had been repaid was for the jury.

2. BANKS AND BANKING (§ 154) — ACTION BY DEPOSITOR — CONDITIONS PRECEDENT — PRESENTATION OF BANK BOOK.

In an action to recover the balance of a deposit, where defendant claimed payment, the depositor's production of his bank book as a prerequisite to a valid demand, essential to a right of action, would have been a useless thing, the doing of which the law never requires.

3. APPEAL AND ERROR (§ 171) — REVIEW — THEORY OF CASE BELOW.

Where defendant tried his case below on the theory that he had paid the balance of plaintiff's deposit, he cannot for the first time on appeal raise the question of want of demand.

4. BANKS AND BANKING (§ 154) — ACTION BY DEPOSITOR — BURDEN OF PROOF — REPAYMENT.

In an action to recover the balance of a deposit, defended on the ground of payment, the burden of proving payment was upon the defendant.

5. BANKS AND BANKING (§ 154) — ACTION BY DEPOSITOR — ADMISSIBILITY OF EVIDENCE.

In an action to recover the balance of a deposit, testimony of defendant that he owned the business or premises and there carried on a banking business was immaterial and irrelevant.

6. TRIAL (§ 56) — RECEPTION OF EVIDENCE — REPETITION.

The repetition of testimony is so far discretionary with the trial court that the appellate court will not interfere, unless there was gross abuse of such discretion; and where interpreters, in an action to recover a deposit, had given a confused translation of the contents of the plaintiff's bank book, there was no error on the part of counsel for plaintiff in having defendant read and translate it again.

7. APPEAL AND ERROR (§ 979) — NEW TRIAL (§ 72) — DISCRETION OF LOWER COURT — SETTING ASIDE VERDICT.

The question whether a verdict should be set aside as so manifestly against the weight of the evidence as to indicate prejudice is entirely within the discretion of the trial court, and that court's approval of the verdict will be accepted by the appellate court.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Duge Donijanovic against Peter Hartman, with counterclaim by defendant. Judgment for plaintiff, and for defendant on the counterclaim, and defendant appeals. Affirmed.

Hall & Dame, of St. Louis, for appellant. William Baer, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff brought this action before a justice of the peace to recover $200. In the petition filed with the justice it is stated that on the 14th of April, 1907, defendant was engaged in the banking business and as such received from plaintiff on deposit $300, agreeing with plaintiff to return it to him on demand; that plaintiff had received $100 on the 28th of April, 1907, and had afterwards demanded of defendant the return of the balance but defendant had failed and neglected and refused to pay the same. Judgment was prayed for the $200 and interest from the date of demand.

Defendant filed an answer before the justice which was, first, a general denial, then a counterclaim for $39.40 claimed to be due by plaintiff to defendant.

Apparently, although the abstract of the record does not set this out, plaintiff recovered before the justice, and defendant appealed to the circuit court. There, on a trial before the court and a jury, a verdict was returned in favor of plaintiff for the $200, and for defendant for the $39.40, judgment being rendered in favor of plaintiff for the difference. Filing a motion for new trial and excepting to its being overruled, defendant has perfected his appeal to this court.

It appears from the evidence in the case that defendant was carrying on a kind of private banking business, not as a licensed banker, but for the accommodation of his customers, his regular business being that of a butcher and grocer. Plaintiff deposited $300 with him on the date specified in the petition or statement and received a passbook or bank book from defendant, on which was printed or written in Croatian that defendant was a banker and also carried on steamship and railroad ticket exchange, and that every one depositing money or drawing money from defendant must bring this book when he wanted to do either. There was testimony on behalf of plaintiff tending to show that a few days after he had made the deposit of $300, he had withdrawn $100, that amount being entered in this book, and that this was all he had ever drawn from defendant, plaintiff testifying that not...