Linn County v. Farmers' & Merchants' Bank

• Decision Date: 09 June 1903
• Citation: 75 S.W. 393,175 Mo. 539
• Court: Missouri Supreme Court
• Parties: LINN COUNTY v. FARMERS' & MERCHANTS' BANK et al.

75 S.W. 393

175 Mo. 539

LINN COUNTY v. FARMERS' & MERCHANTS' BANK et al.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

BANKS—INTEREST ON DEPOSITS—PAYMENT— SETTLEMENT—DEMAND BEFORE SUIT—SUFFICIENCY— APPEAL—EXCEPTIONS.

1. Defenses stricken out without any exception to the court's action are not available on appeal.

2. The mere entry by the cashier of a bank of credits on the bank book of a county treasurer for interest due the county on daily balances, daily or monthly, did not amount to a settlement, requiring the county to resort to equity to correct a mistake therein to entitle it to recover.

3. Under the direct provisions of Rev. St. 1899, § 1575, the fact that no demand was made on a bank for interest due on daily balances previous to suit cannot be urged, in the absence of pleading setting up want of demand.

4. Where a bank accepted county funds on agreement to pay interest on daily balances, testimony of a member of the county court that he stated to an officer of the bank that, if he did not pay the money, the county would bring suit, shows a sufficient demand.

5. Where a bank agreed to pay interest on daily balances, which was ascertainable from data at hand and in the bank's possession, it was not necessary to make demand for any specific amount before suing.

Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Action by Linn county against the Farmers' & Merchants' Bank and others. From a judgment for plaintiff, defendants appeal. Affirmed.

E. R. Stephens, for appellants. Johnson & Bresnehan and Thomas P. Burns, for respondent.

BURGESS, J.

This is an action to recover $424.50, claimed to be the balance due plaintiff by defendants as depository of its funds for two years from the 4th day of May, 1897, at 4 1/20 per cent. interest, on daily balances. Plaintiff had judgment for the sum of $359.70. Defendants appeal.

The facts, briefly stated, are that the Farmers' & Merchants' Bank was at the time of the institution of this suit, on April 18, 1900, and prior thereto, a partnership banking institution, and C. W. Trumbo, C. E. Trumbo, Marion Cave, Lee Meyer, and James Brown were the partners, and as such its owners. At the May term, 1897, of the county court of Linn county said defendant bank was selected by said county court depository for plaintiff for the two years next following said May term of said court. A contract was then entered into between plaintiff and defendant bank by which the bank was to pay plaintiff 4 1/20 per cent. interest, computed on daily balances and remaining as a credit to plaintiff, in monthly payments, to the treasurer of said county, one C. E. Kelley. The bank became the depository of the county funds on the 10th day of May, 1897, and continued as such until the 2d day of May, 1899. During that time Kelley, county treasurer, deposited the county's funds with defendant bank, and from time to time the cashier of defendant bank, C. E. Trumbo, entered credits on Kelley's bank book of interest due the county on daily balances, and when such credits were entered there was nothing said as to whether such credits were the full amount of interest due the county on daily balances to its credit at the time such credits were made or not, and no settlement was had with the bank. No dispute arose, and the treasurer did not know whether the defendant bank had given the county credit on his bank book for all the interest due the county under said contract or not, until about the time the contract between plaintiff and defendant expired; but, about the time the term of the defendant as depository expired, Geo. W. Adams, county clerk for plaintiff county, at the instance of the county court, took Kelley's bank book, showing the account of plaintiff and defendant bank, and made a computation on the daily balances to plaintiff's credit with defendant at the rate of 4 1/20 per cent., and it was then discovered for the first time that the interest due plaintiff under said contract was $1,147.27, whereas the defendant bank had paid plaintiff and entered on Kelley's book only $722.77, leaving the balance due the county, as shown by the said contract, Kelley's bank book, and Adams' computation, of $424.50. When the attention of the officers of defendant bank was called to the discrepancy of $424.50, and demand made on the bank for a settlement with plaintiff, they contended for the first time that some part of the county's fund deposited with the bank belonged to the capital school fund, and that on such part as was capital school fund the county could not require interest under the said contract, and also asserted that the bank had paid the county all it owed under said contract, after the...