Mathias v. O'Neill

• Citation: 6 S.W. 253,94 Mo. 520
• Decision Date: 19 December 1887
• Parties: MATHIAS v. O'NEILL.

6 S.W. 253

94 Mo. 520

MATHIAS v. O'NEILL.

Supreme Court of Missouri.

December 19, 1887.

1. EVIDENCE — RELEVANCY.

Plaintiff, as county treasurer, had made an overpayment on a warrant against the county, and brought an action against defendant, a banker, into whose hands the money had come, to declare him trustee for such amount, and for an accounting. On the trial, plaintiff was asked by his counsel whether, at the time he made deposits in defendant's bank, he regarded it as reliable. The question was excluded, as immaterial to the issue, which was whether defendant had received the money. Held properly excluded.

2. SAME — DOCUMENTARY — BOOK ENTRIES.

In an action to make defendant a trustee of money alleged to have been paid twice on collateral security, and fraudulently retained, the discount books of defendant's bank showed the discount of the collaterals in question; and a witness, defendant's note clerk, was asked whether he had turned over the securities to the teller, to which he answered, over objections by plaintiff, that, from seeing the entries in his handwriting, he thought he did, as that was the custom. Held, that the answer was competent to verify the entries, and prove the invariable custom.

3. LIMITATION OF ACTIONS — RUNNING OF THE STATUTE — FAILURE TO USE DILIGENCE.

A shortage in the treasury by reason of an overpayment, made in 1873, on a warrant on plaintiff as county treasurer, was detected by him soon after, but the action to recover the amount from defendant was not brought before 1883. To the plea of the five-years statute of limitation, plaintiff replied that he had no knowledge prior to 1879 that the money came into defendant's hands. Held, that the bar was complete, as no diligence was shown to discover the fund missing.¹

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action by F. W. Mathias against Joseph O'Neill, to make the latter trustee of money erroneously paid out by plaintiff when treasurer of St. Louis county, and alleged to be in the hands of defendant.

J. J. Lindley and W. L. Scott, for appellant. O'Neill Ryan, for respondent.

SHERWOOD, J.

The petition states that plaintiff, in the year 1873, was treasurer of the county of St. Louis, and that defendant was at the same time presiding justice of the county court of said county, and also president of the Citizens' Savings Bank, a banking institution in the city of St. Louis; that one Dennis Fitzpatrick was a creditor of said county to the amount of $7,000, and had a county warrant therefor in November, 1873, upon plaintiff, as treasurer of said county; that previously to the issuance of this warrant, and on or about October 23, 1873, the said county court had allowed $3,000 of said $7,000 claim in favor of said Fitzpatrick, and made an informal order recognizing said amount of $3,000 as due him; that subsequently said Fitzpatrick obtained a loan from said bank, depositing as collateral for the loan a duly-certified copy of said order for $3,000; that thereafter, and on or about November 22, 1873, defendant requested plaintiff to pay $3,000 of the amount of the aforesaid $7,000 out of the funds in plaintiff's hands as treasurer, and to pay the same into said bank, to the end that Fitzpatrick's indebtedness to the bank might be thereby liquidated. The defendant left with plaintiff at the same time the said copy of the order for $3,000 which Fitzpatrick had previously left at the bank; that, as a matter of favor to defendant, plaintiff complied with this request, and paid said $3,000 into the bank out of the county funds on the said twenty-second of November, 1873, and instructed his clerk, whose duty it was to pay warrants on the treasury, to pay but $4,000 on Fitzpatrick's warrant of $7,000, and to deliver up to said Fitzpatrick said copy of the county order, which plaintiff left with his clerk for that purpose; but plaintiff says that said clerk did on said twenty-second November, 1873, by inadvertence, pay the full amount of $7,000 to Fitzpatrick, and at the same time handed him said copy of the county order for $3,000; that said Fitzpatrick, immediately upon said payment to him, handed to defendant out of said fund of $7,000 so paid him $3,000 thereof, and at the same time handed him said copy of the county order, and that defendant accepted said amount and order from him; that defendant became aware that said amount had been paid to Fitzpatrick by mistake, and that he (the defendant) held the same in trust for plaintiff, — plaintiff having, as the petition avers, made good the shortage to the county by paying the same into the county treasury out of his individual means; that instead of handing the said $3,000 over to plaintiff, as was his duty, the defendant converted the same to his own use, — all of which was done by defendant without plaintiff's knowledge, and without any information or suggestion that said $3,000 had ever come into defendant's hands, until within a few months before the commencement of this suit. Plaintiff asks that defendant may be decreed to be a trustee of plaintiff in respect of said $3,000, and be decreed to account for the same, and that plaintiff have judgment for said amount, with proper interest and costs. Defendant's answer denies all the material averments of plaintiff's petition, except that plaintiff was treasurer as aforesaid, and that he was presiding justice and president of the said bank; and pleads the statute of limitations of five years. The reply denies all allegations of new matter in the answer. After hearing the evidence in the cause, the trial court found the issues for the defendant, and dismissed the petition. Three grounds were made the basis for a rehearing of the cause. (1) That, on the weight of testimony, the court should have decided in favor of the plaintiff; (2) that proper evidence was rejected; (3) that improper evidence was admitted. These grounds are also insisted upon here.

1. There was no error in rejecting the questions as to whether the plaintiff regarded the banking house of Taussig, Gaup & Co. as a safe and reliable house at the time he made deposits there. This question was wholly irrelevant to the issue joined, which was whether the defendant had obtained the $3,000 mentioned in the petition, and converted the same to his own use. The deposit mentioned was one connected with a controversy with the county, and not at all connected with the case at bar. Counsel for plaintiff claim that they had a right to ask the question, in order to show plaintiff's good faith in making the deposit, because they say an attack had been made on the credibility of the plaintiff, based upon the ground that he was a defaulter. This assertion is not borne out by the record; on the contrary, the record is express on the point that the court refused to allow defendant's counsel to show specific acts in order to affect the credibility of the witness. Specific acts of either good or bad faith could not be used to uphold or break down the credibility of the witness.

2. On a certain point, objection was made to the testimony of the witness Chassaing. He was note clerk and general book-keeper in the Citizens' Bank. He testified that his duty was to take charge of the notes and collaterals belonging to the bank, and enter up the discounts in a book kept for that purpose. It was also his custom, as such officer of the bank, when collateral notes matured, to enter them on the teller's blotter, and hand the notes and collateral over to the teller early in the morning of the day of their maturity, to be delivered by the teller to the parties paying...