Kenneth Investment Company v. National Bank of the Republic, of St. Louis
| Decision Date | 06 August 1902 |
| Citation | 70 S.W. 173,96 Mo.App. 125 |
| Parties | KENNETH INVESTMENT COMPANY, Appellant, v. NATIONAL BANK OF THE REPUBLIC, OF ST. LOUIS, MISSOURI, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Selden P. Spencer Judge.
The substance of the petition is that plaintiff (a corporation) long prior to May, 1894, and from time to time thereafter deposited money with the defendant bank on general account subject to be drawn out by plaintiff's checks; that on the said twenty-fourth day of May its passbook was balanced by the bank and returned to plaintiff showing a balance to plaintiff's credit of five hundred and seventy-nine dollars and fifty-four cents; that from the said twenty-fourth day of May to September 24, 1894, plaintiff made various deposits with the defendant aggregating twelve thousand one hundred and seventy-two dollars and fifty-four cents, which with the balance of May 24 made a total of twelve thousand seven hundred and fifty-two dollars and eight cents to plaintiff's credit; that against this credit plaintiff drew its checks aggregating nine thousand five hundred and fifty-eight dollars and seventy-three cents leaving a balance to plaintiff's credit of three thousand one hundred and ninety-three dollars and thirty-five cents that between said twenty-fourth day of May and September 24, 1894, the defendant, without the authority, consent or knowledge of plaintiff, charged against said account at various times as having been paid by it to plaintiff, various sums aggregating ten hundred and ninety-three dollars, no part of which was received by plaintiff, and that the defendant though often requested has refused to credit plaintiff's account with the said sum of ten hundred and ninety-three dollars erroneously charged against it or to pay said sum to plaintiff on demand.
The answer is a general denial and the following pleas of new matter:
First. That the plaintiff from November, 1893, to November, 1894, had at various times deposited money with plaintiff and drew upon defendant divers checks, all of which were duly paid; that there was over two hundred items of debit and credit in the account; that on May 24, 1894, the account was stated between them and a balance found due plaintiff from defendant of five hundred and seventy-nine dollars and fifty-four cents, which was carried forward to plaintiff's credit; that on June 13, 1894, plaintiff and defendant stated the account when it was ascertained that the balance to plaintiff's credit was fifteen hundred and six dollars and seventy-nine cents; that on August 20, 1894, the account was again stated between plaintiff and defendant when it was ascertained that plaintiff had overdrawn its account by eleven cents; that on September 3, 1894, plaintiff and defendant again stated the account and it was ascertained that the defendant owed the plaintiff five hundred and seventy dollars and fifty-nine cents, which was carried forward to plaintiff's credit; that about September 24, 1894, the account was again stated and it was ascertained that there was a balance of twenty-one hundred dollars and thirty-five cents to plaintiff's credit and that about October 9, 1894, the account was again stated and a credit of five thousand six hundred and eight dollars and fifty-seven cents was carried forward to plaintiff's credit and that on November 2, 1894, the account was again stated when it was ascertained that defendant owed plaintiff the sum of two hundred and three dollars and fifty-seven cents, which sum was paid to plaintiff by defendant on November 14, 1894.
Second. For new matter constituting a further defense the answer sets forth that plaintiff for a ground for its suit claims that one Frank J. Chatard, who was in its employ from April to October, 1894, as its bookkeeper, between the twenty-fourth day of May and the thirteenth day of June, 1894, forged a check of plaintiff on defendant for seventy-eight dollars and fraudulently procured the defendant to pay it, and plaintiff further claims that between June 13 and August 20, 1894, Chatard at divers times forged the name of plaintiff to fifteen different checks upon defendant aggregating the sum of six hundred and ninety-five dollars, which he fraudulently procured the defendant to pay, and that between August 20 and September 24, 1894, Chatard forged the name of plaintiff to divers other checks, which he fraudulently procured the defendant to pay, aggregating three hundred and twenty dollars; that during all these periods Chatard was the bookkeeper and had charge of the bank passbook and was entrusted with the keeping of plaintiff's general accounts and of its deposit account with the defendant bank, and that the greater number of said alleged forged checks have been destroyed and that defendant has no means of knowing whether or not they were forged; that on June 13, 1894, when defendant balanced the plaintiff's passbook it returned said book with all of plaintiff's paid checks then in its possession; including the alleged forged check for seventy-eight dollars, to the plaintiff and that plaintiff then and there examined said passbook and said checks and then and there ascertained that Chatard had forged the check for seventy-eight dollars and that it thereupon became its duty to notify the defendant of said forgery of the check that the defendant might recover the amount of said check from Chatard and be put upon its guard against future forgeries by him, but that plaintiff failed to give any such notice.
The answer further alleges that if plaintiff did not in fact examine its passbook and return the cancelled checks, it was its duty to do so within a reasonable time and if it had done so it would have discovered the alleged forgery in time to notify the defendant so that it might have recovered the amount of the forged checks and avoided the payment of his forged checks in the future, and alleges in the alternative that plaintiff did examine its books and discover the forgery or that it negligently failed to make the examination and that the non-discovery of the forgery was due to its neglect to make the examination and alleges the exercise of due diligence and care on its part in the payment of the alleged forged checks and that it was induced by the neglect of the plaintiff to notify it of the forgery of the check for seventy-eight dollars, to pay checks of subsequent dates alleged to have been forged by Chatard and that plaintiff should be estopped by its conduct to maintain the action.
In the third paragraph of the answer defendant tenders the amount of the check for seventy-eight dollars with legal interest and all costs of the suit to date of filing the answer.
The reply admits the balancing of plaintiff's passbook by defendant on May 24, June 13, August 20, September 3, September 24, October 9 and November 2, as alleged in defendant's answer, admits that the balances shown by the book were as alleged in the answer and admits the payment of the balance of two hundred and three dollars and fifty-seven cents as shown by the balance stated by plaintiff on November 2. But alleges that the balances after the settlement of May 24 were incorrect in this, that defendant in making up its account with plaintiff had erroneously charged plaintiff with the sum of ten hundred and ninety-three dollars which plaintiff had not received and for which it had drawn no check or checks against its account after May 24, 1894. Admits that it claims that Chatard, from the month of April to September 24, 1894, forged checks aggregating ten hundred and ninety-three dollars as alleged in the answer and that the number of said checks were twenty-one. Admits that during all that time Chatard was the plaintiff's bookkeeper and was entrusted with the keeping of its general accounts as well as its deposit account with the defendant; admits the destruction of most of the forged checks and that they could not be produced, but denied each and every other allegation of new matter in the answer.
On motion of the defendant, over the objections of the plaintiff, the cause was referred to John W. Dryden, Esq., as referee. The referee heard and reported the evidence to the court together with his findings of the law and the facts. His conclusions are as follows:
"I therefore am led to conclude that under the law of the case, and on the facts as found, the issue as to the second affirmative defense pleaded in the answer must be found for defendant, and plaintiff held to be estopped to recover of defendant any part of the sum sued for by it, except said $ 78 admitted by the answer, and interest thereon from October 8, 1894, the time of filing the petition herein, and I accordingly so find."
Plaintiff filed numerous exceptions to the report of the referee. The court overruled the exceptions, adopted the report of the referee and rendered judgment upon his findings. A motion for new trial proving of no avail plaintiff appealed.
Reversed and remanded.
E. T Farish and C. J. Macauley for appellant.
(1) The court's action in referring the case upon the application of the defendant and against the protest and objection of plaintiff, was erroneous. Sec. 698, R. S. 1899; Dooley v Barker, 2 Mo.App. 325; Schmidt v. Rose, 6 Mo.App. 579; Thornton v. Life Ass'n, 7 Mo.App. 544. (2) When the court may refer a case without the consent of the parties, it may act on the evidence reported by the referee and find different conclusions of fact from those reported by the referee. And appellate courts may review findings of fact in cases of compulsory reference. Bond v. Finley, 74 Mo.App. 22; Cahill v. McCornish, 74 Mo.App. 609; Reins v. Lumpee, 80 Mo.App. 203; Wentville Co. v. Walker, 123...
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