First Nat. Bank v. Rush

• Decision Date: 23 February 1898
• Docket Number: 956.
• Parties: FIRST NAT. BANK OF KANSAS CITY, MO., v. RUSH.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 539

FIRST NAT. BANK OF KANSAS CITY, MO., v. RUSH.

No. 956.

United States Court of Appeals, Eighth Circuit.

February 23, 1898

The plaintiff in error, the First National Bank of Kansas City brought an action against the defendant in error, J. W. Rush upon his promissory note for $3,780, made on February 5 1894, and payable to the order of the bank. In its petition it set forth the note; alleged that Rush pledged to it as collateral security for the payment of this note 10 shares of the capital stock of the First National Bank of Ness City Kan., and 64 shares of the capital stock of the First National Bank of Dighton, Kan.; that he gave written authority to sell the same at public or private sale without notice, upon default in the payment of the note; that the bank had received on June 29, 1894, as the proceeds of the sale of the collaterals, $740; and that the defendant in error was still indebted to it for the unpaid balance of his note and interest. The defendant in error, in the amended answer upon which the case went to trial, admitted the execution of his note and the pledge of the bank stock, and alleged that the sale of the collaterals which the bank made on June 29, 1894, was in fact a sale to itself, but that it concealed this fact from the defendant in error; that it pretended that the sale had been made to Richard Allen, a janitor in the bank, for $740; that it caused the certificates of the stock to be surrendered, and had new certificates issued to Richard Allen; and that he had disposed of the same as his own property, free from all claims of the defendant in error. He alleged that the pretended sale to Allen and his disposition of the stock constituted a conversion of it by the bank; that it relieved the defendant in error from the necessity of making a tender of the amount due on his note, and entitled him to receive of the bank the actual value of his stock on June 29, 1894; which he alleged was $7,400, less the amount due on his note. A demurrer was interposed to this amended answer, and the circuit court sustained it. The judgment upon that demurrer was reversed by this court on the ground that, under the state of facts set forth in the answer, the defendant in error was not required to tender the amount of his debt before pleading and proving his counterclaim. Rush v. Bank, 36 U.S.App. 248, 17 C.C.A. 627, 71 F. 102. When the case returned to the trial court the bank denied the allegations of the amended answer, a trial was had before a jury, and a judgment of $2,048.62 was rendered against the bank. The fact that the bank was the real purchaser at the sale of the collaterals on June 29, 1894, was conceded at the trial. The officers of the bank testified that they bid the property in for the bank in the name of Richard Allen, and caused the stock to be transferred to him to avoid permitting the bank to incur liability as a stockholder. The only question tried by the jury was the value of the collaterals at the time of the alleged conversion, and the court charged them that if their value was less on June 29, 1894, than the amount of the note and interest, the bank was entitled to a verdict for the difference, and, if their value was greater on that day than the amount of the note and interest, the defendant in error was entitled to a verdict for that difference. During the trial, and after the defendant in error had introduced testimony to the effect that the 64 shares of the stock of the First National Bank of Dighton were worth $5,120 on June 29, 1894; that the bank of Dighton never met with any heavy losses after that date; that its capital stock was $50,000, and that the net profits of the bank from July 1 to October 2, 1894, were $316.85; and after the plaintiff in error had produced evidence to the effect that it bid this stock in on June 29, 1894, in the name of Richard Allen for itself; that on July 13, 1894, it notified the defendant in error that it could purchase the collaterals back for the amount of the bid and interest, and that it subsequently sold them to E. E. Parker for $960,--the plaintiff in error offered in evidence the deposition of Parker, and copies of certain letters written by the defendant in error to Lowell & Parker, and copies of certain letters written by the defendant in error to Lowell & Parker, a firm of which Parker was a member, which were attached as exhibits to the deposition and were properly identified. The exhibits disclosed these facts: On October 6, 1894, the defendant in error wrote to Lowell & Parker to write to the plaintiff in error 'what they would give you for five or ten shares of the Dighton stock. They hold 68 shares. ' On November 5, 1894, he wrote them: 'I wired you last night to offer the First National Bank $640. If they accept this, wire me, and I will send you draft at once. This is all that I can get for it at this time, and even that is in the way of a trade. ' On November 19, 1894, he wrote them: 'I cannot increase my offer, nor am I particular whether they accept the offer made. I have a trade on hand, and agreed to give them a definite answer by the first of the month. If they accept in the meantime, all right; if not, let it go, as I think now I can get hold of enough of it to do me for less money. ' On February 11, 1895, he wrote them: 'Your message of to-day received and answered, and I will here confirm the same. ' Close deal. Draw at sight. See letter of to-day.' $800 is really every dollar the stock is worth to me at this time, but there are other reasons, which I will explain to you personally, as I expect to be in Boston within the next month, why I want this stock. On receipt of the stock you can draw at sight with stock attached for the amount, and send either in registered letter or per express, or, if you deposit with your bank, instruct the bank to draw direct, so it will not fall into the hands of the First National of Kansas City. ' In the deposition Parker testified that he and his partner bought the 64 shares of stock in the Dighton National Bank from the plaintiff in error for $960 on February 11, 1895, the day on which the last letter quoted was written, and that within a few days of the time they purchased it they sold it through the defendant in error to J. Spaulding, whom he did not know, for $1,056, which is exactly 10 per cent. more than the amount which they paid for it. The defendant in error objected to the deposition and the exhibits 'as immaterial, irrelevant, and incompetent, and not bearing upon the issues submitted to the jury. ' Counsel for the bank called the attention of the court to their claim that the deposition and exhibits tended to show that the defendant in error had regained the possession and control of the 64 shares of stock in the Dighton Bank for $1,056, and that the exhibits were evidence of the value of the stock at the time of the alleged conversion. The court nevertheless sustained the objections. The counsel for the bank then offered each and every question and answer in the deposition and every exhibit attached to it. The defendant in error objected to each question, answer, and exhibit. His objections were sustained, and the plaintiff in error excepted to the rulings of the court. These and other rulings are assigned as error.

A. R. Strother (R. L. Yeager, on brief), for plaintiff in error.

Clifford Histed (W. H. Rossington and Charles Blood Smith, on brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge, after stating the facts as above.

General objections to a deposition must be overruled, if any part of the deposition appears to be admissible in evidence, or if the proponent calls attention to any part which is admissible in any view of the case. Such objections raise the issue whether or not the proposed evidence is admissible under any circumstances or for any purpose, but they raise no other issue. If a court overrules them, its ruling must be sustained, unless it clearly appears that none of the evidence admitted could be lawfully received under the pleading and evidence in the case. If it sustains such objections, its rulings must be reversed, if any part of the evidence rejected was admissible upon any issue before the court. A case occasionally arises in which the proponent offers a great mass of evidence which does not appear on its face to have any relevancy to the issues on trial, and in which he does not call the attention of the court to any part of the mass which is admissible, and does not state the purpose of his offer, where a general objection is very properly sustained, as in Insurance Co. v Frederick, 19 U.S.App. 24, 33, 7 C.C.A. 122, 127, 58 F. 144, 149, and Central Pac. R. Co. v. California, 162 U.S. 91, 117, 16 Sup.Ct. 766. But such cases are rare exceptions to the general rule, which must not be permitted to interrupt its steady and uniform application to the cases which fall within it. It is impractical, if not...