Freyer v. Bank of Laddonia
| Decision Date | 07 June 1927 |
| Citation | 296 S.W. 452,220 Mo.App. 924 |
| Parties | LESLIE FREYER, RESPONDENT, v. BANK OF LADDONIA, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Audrain County.--Hon E. S. Gantt Judge.
Judgment affirmed.
Abbott Fauntleroy, Cullen & Edwards and Kennen & Kennen for appellant.
(1) An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance. Bambrick v Simms, 102 Mo. 158; Stewart v. R. Co., 157 Mo.App. 225; Edmonson v. Carriage, etc., Co., 149 Mo.App. 128; Barr v. Lake, 126 S.W. 755; Davis v. Boswell, 77 Mo.App. 294; Marmon v. Waller, 53 Mo.App. 610. (2) Where an account is rendered by one person to another, the retention of the same by the latter beyond a reasonable time without objection, is evidence of his assent to the correctness of the account, and, accordingly, is evidence of an account stated. The person receiving the account thus retains it beyond a reasonable time without objection, this fact, if unexplained, establishes an assent to the correctness of the account, and a promise to pay the same, and so establishes an account stated. Kent v. Highleyman, 17 Mo.App. 9; Missouri Pac. R. Co. v. Coombs Co., 71 Mo.App. 299; Shepard v. State Bank, 15 Mo.App. 143; Alexander v. Scott, 150 Mo.App. 213; Marmon v. Waller, 53 Mo.App. 610; McCormick v. Sawyer, 104 Mo. 36. (3) The periodical balancing of a pass book, which is retained by the purchaser and in which all purchases are charged and credits for payments given, the balances struck being carried forward as balance due, will constitute an account stated. And the same is generally true as regards a bank pass book written by the bank and delivered to a depositor with the vouchers. Shepard v. State Bank, 15 Mo. 143; Kenneth Inv. Co. v. Republic Nat. Bank, 96 Mo.App. 125; McKeen v. Boatmen's Bank, 74 Mo.App. 281; But see Linn County v. Farmers', etc., Bank, 175 Mo. 539; Lieber v. St. Louis Fourth Nat'l Bank, 137 Mo.App. 158. (4) Where the parties meet and go over their accounts and strike a balance in favor of one of them, to which the other assents as correct, this constitutes an account stated. Borkowski v. Janicke, 157 S.W. 125; Silver v. St. Louis, etc., R. Co., 5 Mo.App. 381 (aff. 72 Mo. 194). (5) The meeting of the minds of the parties upon the correctness of an account stated is usually the result of a statement of account by one party and an acquiescence therein by the other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case. Powell v. Pacific R. Co., 65 Mo. 658; Alexander v. Scott, 150 Mo.App. 213. (6) The defense of ratification may exist when there is no authorization and the court erred in denying defendant's right of recovery, even though the plaintiff ratified the act of the bank in paying the disputed checks. Mechem on Agency (2 Ed.), sec. 348, p. 261; Mechem on Agency (2 Ed.), sec. 432, p. 314; Applegate v. Baxley, 93 Ind. 147, 149; National Bank v. Norton, 1 Hill 572, 576; City of Longview v. Capps, 123 S.W. 160 (citing 7 Words & Phrases, pp. 6446-6550). (7) The evidence was sufficient to make payment or settlement a question for the jury and the court erred in instructing the jury peremptorily that there was no evidence of settlement or payment. Mechem on Agency (2 Ed.), sec. 432, p. 314; Applegate v. Baxley, 93 Ind. 147, 149; National Bank v. Norton, 1 Hill 572, 576; City of Longview v. Capps, 123 S.W. 160. (8) The payment of the balance due upon an account rendered is an admission of its correctness; and the same is true where an account is received without objection, and the amount of the balance is credited on a subsequent account against the party presenting the first account. McCormick v. St. Louis, 166 Mo. 315; Bewick v. Butterfield, 60 Mich. 203, 26 N.W. 881; Beals v. Wagener, 47 Minn. 489, 50 N.W. 535.
W. H. Logan and Fry & Hollingsworth for respondent.
(1) This is an action for debt and the petition pleads the facts in conventional form. Quattrochi Bros. v. Bank, 89 Mo.App. 500; Kenneth Inv. Co. v. Bank, 96 Mo.App. 125; Lieber v. Bank, 137 Mo.App. 158; Biscuit Co. v. Grocer Co., 143 Mo.App. 300; Kenneth Inv. Co. v. Bank, 103 Mo.App. 613; Trust Co. v. Bank, 154 Mo.App. 89; Allen Gro. Co. v. Bank, 182 S.W. 777. And no demand was necessary to entitle plaintiff to recover money deposited with defendant bank after it claimed "payment;" a litigant is not required to take steps which admittedly would have proven futile. Bank v. Benoist et al., 10 Mo. 327. (2) Proof of payment of forged checks makes prima-facie case against bank, and it must affirmatively plead negligence on the part of plaintiff (which was not done) in order to avail itself of a claim of "settlement" by reason of plaintiff making no objection to the checks being charged to his account within a reasonable time after receipt of pass book--that is, in effect, estoppel. East St. Louis Cotton Oil Co. v. Bank, 205 S.W. 96; Kenneth Inv. Co. v. Bank, 96 Mo.App. 125; McClendon v. Bank, 174 S.W. 204. (3) "Payment" was not pleaded and was not, therefore, available as a defense in this case. Musgrove v. Bank, 174 S.W. 171, 187 Mo.App. 483; Donijanovic v. Hartman, 152 S.W. 424, 169 Mo.App. 204; St. Louis Tire Co. v. McKinney et al., 245 S.W. 1100. (4) A "settlement" such as will constitute an accord and satisfaction must be the result of an agreement between the parties to that effect. Green v. Whaley, 197 S.W. 360, and cases therein cited; Musgrove v. Bank, 174 S.W. 176. (5) Defendant's instruction No. 3 was properly refused because: (1) It was both beyond the scope of the pleadings and the evidence; State ex rel. v. Coal & Coke Co., 195 S.W. 724; Degonia v. Railroad, 224 Mo. 589. (2) It undertook to single out evidence and to judicially declare and broaden its meaning and import, which was a question for the jury to determine. (6) Defendant's instruction No. 4 was properly refused because it wholly ignores the fact that plaintiff was regularly depositing money in defendant bank in ordinary course for the purpose of meeting such checks that he might issue; ignores the pending dispute between the parties as to the correctness of the account; and ignores the question of agreement between the parties, which was absolutely necessary to show "accord and satisfaction" or "payment" or "ratification."
This action was commenced on January 30, 1925. It is alleged in the petition that the defendant is a banking corporation; that plaintiff was for many years a customer of and a depositor of money with defendant, which relation of customer of and depositor with defendant was instituted and maintained with a mutual agreement and understanding between plaintiff and defendant that any and all sums of money so deposited by plaintiff with defendant should be subject to disbursement or withdrawal only upon due presentation of plaintiff's checks drawn upon defendant and demand for payment thereof made by the payee or endorsee thereon named; that defendant, in violation of its agreement and understanding with plaintiff to pay out and charge to his account money deposited by him in said bank to only such persons as were holders of his checks in due course, as hereinabove stated, did, between the dates of February 15, 1924, and August 15, 1925, wrongfully and illegally pay to divers persons and charge plaintiff's deposit account with twenty-one false and spurious checks, aggregating $ 601.40, all of which said checks were drawn upon defendant and purported to bear plaintiff's signature as the maker thereof; that each and every one of said checks were forgeries and that none of said checks were drawn or uttered by any person authorized by plaintiff so to do; that in August, 1924, plaintiff discovered that defendant had illegally and wrongfully paid out of his funds on deposit in said bank, and had illegally and wrongfully charged his account with the aggregate amount of said checks; and that he then demanded of defendant that it restore to his account the total amount of funds paid out by it on said checks, which said demand the defendant refused, and now refuses; and judgment is prayed for the sum of $ 601.40, with interest and costs.
The answer denies generally the allegations of the petition, and it is alleged therein, by way of affirmative defense, that, on or about the 16th day of February, 1925, and after the plaintiff had notified the defendant that he would not be liable for the payment of said checks mentioned and described in the petition the said plaintiff was indebted to the defendant in a large sum, said indebtedness being evidenced by the plaintiff's notes payable to the defendant and by an overdraft of plaintiff's account with the defendant, and that on said day and with full knowledge and information concerning the matters and things alleged in his petition herein the said plaintiff made a settlement with the defendant and on said day a full and complete settlement of all charges and accounts between the said Leslie Freyer and said Bank of Laddonia was had in such manner as to constitute a complete accord and satisfaction of any and all claims by either of them against the other.
A further affirmative defense is set up to the effect that the checks were drawn and uttered by Eggert pursuant to a collusive arrangement between Eggert and plaintiff, whereby Eggert was to forge plaintiff's name to checks and obtain money thereon, and divide the proceeds with the plaintiff. It...
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