Drumm-Flato Commission Company v. Gerlach Bank

• Citation: 81 S.W. 503,107 Mo.App. 426
• Parties: DRUMM-FLATO COMMISSION COMPANY, Respondent, v. GERLACH BANK, Appellant
• Decision Date: 30 May 1904
• Court: Kansas Court of Appeals

81 S.W. 503

107 Mo.App. 426

DRUMM-FLATO COMMISSION COMPANY, Respondent, v. GERLACH BANK, Appellant

Court of Appeals of Missouri, Kansas City

May 30, 1904

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

Judgment reversed and cause remanded.

Charles Swindall and Elijah Robinson for appellant.

(1) The court should have directed a verdict for the defendant. Plaintiff's own evidence showed that it had ample time and opportunity to take legal action to hold the money in controversy, and that it was urged to do so, but did not do so because it was looking to Edmisson to pay the balance due it. Drumm-Flato Co. v. Gerlach Bank, 92 Mo.App. 326. (2) The court committed error in admitting in evidence on the part of plaintiff certified copy of what purported to be a copy of the mortgage under which plaintiff claims. (3) The trial court committed error in admitting irrelevant evidence on the part of the plaintiff. Ferguson v. Thatcher; 79 Mo 511; Frederick v. Allgaier, 88 Mo. 598; State v Blunt, 91 Mo. 503; Mathias v. O'Neill, 94 Mo. 520; Bank v. Bank, 64 Mo.App. 253; Weber v Insurance Co., 5 Mo.App. 51; Jackson v. Smith, 7 Cowen 719; Thompson v. Bowie, 4 Wallace 463; Carlin v. Bank, 86 Mo.App. 592. (4) The court committed error in admitting in evidence entries in plaintiff's books showing the number of cattle received. Wells v. Hobson, 91 Mo.App. 379; Nelson v. Nelson, 90 Mo. 460; Robinson v. Smith, 111 Mo. 205; 9 Am. and Eng. Ency. Law (2 Ed.), 901. (5) The court committed error in giving plaintiff's instruction 3. Said instruction did not correctly state the law applicable to the case, and, moreover, was in direct conflict with instructions given at the request of the defendant. Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 509; Henschen v. O'Bannon, 56 Mo. 289; Wilmott v. Railroad, 106 Mo. 535; Bank v. Hatch, 98 Mo. 377; Spillane v. Railroad, 111 Mo. 555; Wallis v. Westport, 82 Mo.App. 522; White v. Insurance Co., 93 Mo.App. 282; Linn v. Bridge Co., 78 Mo.App. 118; Shoe Co. v. Lisman, 85 Mo.App. 340; Carder v. Primm, 60 Mo.App. 423; Kinner v. Tschirpe, 54 Mo.App. 578. (4) The court committed error in excluding evidence of W. G. Baird and Did Wilkinson, to the effect that the cattle in controversy were generally known, recognized and spoken of as belonging to Mr. Randall, and that they never heard of any one else claiming to own said cattle, or any interest in them. Neudeck v. Grand Lodge, 61 Mo.App. 97 (105); 1 Greenleaf Evidence, sec. 101; Abbot's Trial Evidence, p. 179. (5) The court committed error in giving plaintiff's instruction 4. Defendant's obligation in the premises was fixed by the law and could not be enlarged by any contract between the plaintiff and the Globe Company. Drumm-Flato Co. v. Gerlach Bank, 92 Mo.App. 326. (6) The court committed error in giving plaintiff's instruction 13. Defendant's evidence showed that Edmisson delivered to plaintiff 1,710 head of cattle and soon thereafter rounded up 400 more, for the purpose of delivering them to plaintiff, and that plaintiff's agent, in the absence of Edmisson, took possession of them. (7) The court committed error in giving plaintiff's instruction 14. The burden of proof rested upon the plaintiff to show that at the date of the institution of this suit the debt secured by the mortgage under which it claimed the cattle in controversy, had not been paid. These instructions were calculated to mislead the jury. Chitty v. Railroad, 148 Mo. 64; Edwards v. Railroad, 79 Mo.App. 257; Colliott v. Mnfg. Co., 71 Mo.App. 163; Milligan v. Railroad, 79 Mo.App. 393; Mound City v. Conlon, 92 Mo. 221; Wilmott v. Railroad Co., 106 Mo. 535; Estes v. Shoe Co., 155 Mo. 573; Hoepper v. Hotel, 142 Mo. 378; Bradley v. Railroad, 138 Mo. 293. (8) The court committed error in refusing defendant's instruction asked at the close of the argument.

Botsford, Deatherage & Young for respondent.

Submitted an extended argument.

OPINION

SMITH, P. J.

This case was before us by appeal on a former occasion, as may be seen by reference to the 92 Mo.App. 326. The pleadings, evidence and instructions as reported in that case are much the same as in that now before us. The judgment in the former case, which was for defendant, was reversed and the cause remanded. That in this was for the plaintiff and defendant has appealed.

I.

The defendant now insists that the instruction in the nature of a demurrer to the evidence requested by it should have been given instead of refused. Nothing is seen in the opinion reported in the case when here on the former appeal that in any way precludes us from entering into an examination of the propriety of the action of the court in denying the demurrer. It is true that in respect to a certain issue in the case it was stated that there was evidence adduced sufficient as to that to go to the jury; but it is not to be understood by that, or any other remark made in the course of the opinion, that our right to now consider whether or not the evidence is sufficient to entitle plaintiff to a submission, is foreclosed. In that opinion it was inter alia said that where money is deposited in a bank to the credit of one person and the bank has notice that it is claimed by another, the bank is bound to hold the deposit a sufficient length of time to afford such other an opportunity to assert his claim; and if he has a reasonable time allowed him for that purpose and fails to do so, the bank may pay the deposit to the depositor without any liability to the adverse claimant. And in the same connection it was said that the plaintiff "had a reasonable length of time to have asserted its rights and no more; and this was a question for the jury under a proper instruction."

The defendant now insists that the evidence measured by this standard discloses no liability on the part of the defendant and that therefore the court erred in its submission of the case to the jury. The general rule is, that what is a reasonable time is a mixed question of law and fact which, under proper instructions of the court, ought to be submitted to the jury. There are, however, two well-recognized exceptions to this: (1), where there are fixed and certain rules for its determination by the court; and (2), where the uncontroverted evidence so clearly proves the issue that there is really no question in respect to it to be submitted to the jury. In such cases the question may be treated as one of law and passed upon by the court without any encroachment on the province of the jury. 1 Greenleaf on Evidence, section 40; Skeen v. Springfield, 34 Mo.App. 485, and cases there cited.

Manifestly, the case in hand does not fall within either of the exceptions and therefore the reasonableness of the time in which the plaintiff might have taken the requisite legal steps to assert its claim to the deposit was a question that was properly submitted to the jury under the instructions.

II.

The defendant further complains of the action of the court in giving the plaintiff's third instruction which told the jury that, "if you find from the evidence that the cattle shipped by Randall to the Globe Live Stock Commission Company were a part of the cattle owned by Edmisson and conveyed by him to plaintiff by the chattel mortgage read in evidence, then the payment by defendant to said Randall of the proceeds of said cattle, either with the consent or pursuant to the direction of said Globe Live Stock Commission Company, or of one Coffee, constitutes no defense to this action."

This instruction purports to be complete within itself and to submit the whole case. It in effect excludes from the consideration of the jury the principal defenses pleaded by the answer of the defendant. If it had been qualified by the rule enunciated in the defendant's third, it would have been well enough. It was repugnant in expression to those given for defendant and was calculated to mislead the jury to the injury of the defendant. It is quite true that under the rule of practice at present in vogue in this State it is not necessary that an instruction should refer to another or that the issues involved in a case should be presented to the jury to be passed upon in one instruction; but if the instructions taken as a whole present the issues fairly and are not calculated to mislead the jury they are all the law requires. Minter v. Bradstreet, 174 Mo. 444, 73 S.W. 668, and cases there cited.

The instructions here do not meet the second requirement of the foregoing rule because of the misleading character of that of plaintiff previously quoted. If the jury found, as they were warranted by the evidence in doing, that the Randall cattle were covered by the mortgage from Edmisson to plaintiff, then, under plaintiff's instruction, if it found, as it very well might have done, the proceeds of those cattle had been deposited in the defendant bank that then it was liable without reference to whether or not the plaintiff, after it became aware of the deposit, within a reasonable time thereafter took the requisite steps to assert its right to the proceeds so deposited. The contention that this instruction was calculated to mislead is so obviously well grounded as to require no argument to support it. The instruction should not have been given.

III.

The defendant's further complaint is that the court erred in giving plaintiff's fourth instruction which told the jury "that if you find from the evidence that it was agreed on October 20, 1899, by Mr. Flato for plaintiff and Mr Vorhees, the general manager of the Globe Commission Company, that plaintiff should have time to make investigation and to bring suit, and that thereupon said Vorhees in the two telegrams sent to defendant by him warned and directed defendant to either...