Lacks v. Butler County Bank

• Decision Date: 29 May 1907
• Citation: 204 Mo. 455,102 S.W. 1007
• Parties: LACKS et al. v. BUTLER COUNTY BANK et al.
• Court: Missouri Supreme Court

102 S.W. 1007

204 Mo. 455

LACKS et al. v. BUTLER COUNTY BANK et al.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. EVIDENCE—RES GESTÆ—HEARSAY.

Admission of B., several days after money was taken from a bank, that he stole it, is not admissible as part of the res gestæ, but is hearsay, in a suit by the cashier of the bank to set aside, as procured by duress, his note to the bank for that and other money, all of which it claimed he had taken.

2. CANCELLATION OF INSTRUMENTS—DURESS—COMPETENCY OF EVIDENCE.

Evidence in a suit to set aside, as procured by duress, a note of the cashier of a bank to it, as to interest which the bank should have received, but which was not credited on its books, is incompetent; such matter not having been considered when the note was given.

3. APPEAL—REVIEW — INSTRUCTIONS INVITED BY COMPLAINING PARTY.

One may not complain on appeal of instructions invited by him.

4. CANCELLATION OF INSTRUMENTS—DURESS—EVIDENCE.

Evidence in a suit to set aside a note of the cashier of a bank to it as procured by duress held to show its execution was superinduced by threats of prosecution.

Appeal from Circuit Court, Butler County J. L. Fort, Judge.

Suit by W. E. Lacks and others against the Butler County Bank and others. Judgment for defendants. Plaintiffs appeal. Reversed and remanded, with directions.

J. M. Atkinson, for appellants. L. F. Dinning and L. R. Thomason, for respondents.

GRAVES, J.

Plaintiffs brought suit in the circuit court of Butler county to cancel a promissory note for $3,000, as well as a deed of trust and chattel mortgage given to secure the same, on the ground that they were procured by duress. From a decree dismissing their bill, they appealed.

Defendant Butler County Bank is a banking corporation under the laws of this state. Defendant Henry Turner is the trustee in the deed of trust and chattel mortgage, and defendant William Ferguson the beneficiary therein, but as trustee for the defendant bank, as stated in the petition. Plaintiff Katie Lacks is the wife of the principal plaintiff, W. E. Lacks, and signed the written instruments with him. The other plaintiffs are brothers, who signed the note as sureties. W. E. Lacks had for some years been the cashier of defendant bank. Prior to July 10, 1902, the date around which clusters the story of this case, W. E. Lacks owed the bank upon notes and overdrawn account in the aggregate sum of $700, unsecured as far as the record shows. On July 16, 1902, said W. E. Lacks and other plaintiffs executed the instruments involved in this suit. A day or two after that his resignation as cashier was requested and by him given. W. E. Lacks claims that on or about July 10th he went to the bank in the morning; that Mr. Cook, the assistant cashier, was there and opened the safe and cashed a check for some one; that one William Bollinger, a gentleman of color, and janitor of the building, was there sweeping out the bank; that he, Lacks, went to the post office for the mail; that they were found short $1,000 in cash, which must have been taken out at that time; that he at once reported it to the president of the bank, stating that one of three persons must have gotten the money, viz., Cook, himself, or the negro; that he knew he did not get it, and did not think Cook got it, but believed the negro did, inasmuch as he had gone, and suggested that they take steps to have him apprehended; that the officers of the bank declined to take such steps, saying that they did not want the notoriety of a loss of this character; that in a day or two thereafter the officers began to threaten him with prosecution for the theft of this money, and he then, on his own account, began a search for Bollinger, the negro janitor, but did not succeed in having him arrested until after the officers of the bank, through these threats, but against his protests of innocence and liability, procured the execution of these papers. It also appears from the petition and the evidence of this witness that prior to this time he, the cashier, had cashed a note, paying therefor $100, which note turned out to be a forgery, and this sum was charged to him in the note of $3,000 in suit; that in 1900, while one Turner was assistant cashier and he was cashier, $500 was stolen from the bank without fault upon his part, and this was included; that at another time prior to July 10, 1902, the bank was burglarized and $400 in silver taken therefrom without fault upon his part; that on July 15, 1902, one of the bank customers, Chester A. Detrich, overdrew his account in the sum of $77, which was likewise wrongfully charged to the witness in the $3,000 note. The petition sets out fully and particularly all these matters, as well as the fact that the officers of the bank threatened W. E. Lacks with prosecution if the note and other instruments were not executed, and that, by reason of said threats, they were executed by W. E. Lacks and the other parties thereto. The petition, after pleading in detail all these transactions, and averring that none of the losses of the bank were through the knowledge, consent, fault, negligence, or wrongdoing of W. E. Lacks, closes with this prayer: "Wherefore, the premises considered, the plaintiffs pray that the said note, the said deed of trust, and the said chattel mortgage be canceled and held for naught, and for such other and further relief as to the court may seem meet and just in the premises."

The answer of the bank admits the corporate capacity of the defendant bank, and denies generally all other things pleaded in the petition. The record before us shows no answer as to the other defendants. The judgment, after making the formal recitations, closes thus: "And being fully advised of and concerning said evidence, doth find the issues herein for the defendant the Butler County Bank. Wherefore it is ordered and adjudged by the court that plaintiff's bill be, and the same is hereby, dismissed. It is further ordered and adjudged that plaintiffs take nothing by reason of said bill, and that defendants go hence thereof, without day. It is further ordered and adjudged by the court that defendants recover of and from the plaintiffs their costs in this behalf expended and that execution issue therefor."

In addition to the testimony of W. E. Lacks as to the threats of prosecution, Henry Lacks, one of the plaintiffs, testified in part thus: "Q. I will ask you to state to the jury now why you signed that note for $3,000. A. Through threats that was made of a criminal prosecution of my brother. He was just about crazed at the time, and I was very uneasy about him. He was just as near crazed as you ever see a man. Q. You say you signed it on account of threats being made to prosecute him through these shortages, and you did not know then how these shortages came about? You say that you signed that note because of threats to prosecute him? A. Yes, sir. Q. Who made any threats, Mr. Lacks? A. The bank officials. Q. Who was it? A. It was general talk among them. Mr. Dinning: Give us names. A. Jesse Reynolds and George Begley were two of the men. Q. What did they say with reference to prosecuting Will E. Lacks? A. George Begley said that W. E. Lacks had stolen the money—that is, that $1,000—and that that matter had to be fixed up, and Jesse Reynolds was agreeing in what Begley said. They said the matter had to be fixed up. Q. They said that matter had to be fixed up immediately? A. Well, at that time, I do not know that they said immediately. Q. Were they negotiating with you at that time to sign that note? A. Yes, sir. Q. Where were you when this conversation occurred? A. It occurred in the back of the office of Jesse Reynolds. Q. He at that time, you say, was president of the Butler County Bank? A. Yes, sir. Q. Who else was present besides George Begley and Jesse Reynolds, at the time this conversation occurred? A. I do not remember of any one else at that time. Myself and those two men. Q. Was the note signed by you at that time? A. No, sir; the note was not signed until perhaps two days after that. Q. Well, what did you say when George Begley said that Will Lacks had stolen that money, and the matter had to be fixed up? A. I said, `Gentlemen, I am satisfied as well as I am of anything that Will Lacks never got one cent of this money, but he is crazed over the matter, and you gentlemen have no way on earth of knowing anything else but that he did get it; but I believe that right will come out sometime, and that you gentlemen will know that he never got the money, but I am, at present, willing to fix it up in order to relieve his mind.' Q. Why did you sign that note? A. To keep them from prosecuting Will Lacks. Q. Were you present when Will Lacks signed it? A. I am not sure. I suppose I was. Q. Were you present when your brother, John N. Lacks, signed it? Were you together when the note was signed? A. Yes, sir; I think so. Q. Where was it signed? A. Down in the office at the bank. Q. Who was present of the bank officials, if any one? A. I think they were all present—I remember that Mr. William Ferguson was present, and Mr. Ed. Abington, and Mr. Jesse Reynolds—I am not sure about Begley—and John N. Lacks, W. E. Lacks and myself, and there may have been others. Q. At the time of signing this note, you say this was about two days after you had the conversation with Reynolds and Begley at Reynolds's office? A. Yes, sir; I think it was about two days. Q. At that time was there any conversation about the prosecution of Will Lacks, unless this note was signed up, down at the bank at the time you signed it? A. It was the general talk, but I do not recollect any words used at the time we signed it. The reason we made the note was for that purpose. Q. The whole talk and conversation had been prior to that, and you had all come to the point where you were going to sign the note? A. Yes, sir. Q. Did Will Lacks refuse to sign this note in the presence of any...