Mt. Vernon Bank v. Porter

• Decision Date: 21 February 1899
• Citation: 49 S.W. 982,148 Mo. 176
• Parties: MT. VERNON BANK v. PORTER et al.
• Court: Missouri Supreme Court

49 S.W. 982

148 Mo. 176

MT. VERNON BANK v. PORTER et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

BANKS — CASHIERS — LIABILITY ON BONDS — TRIAL — NONSUIT — NEW TRIAL — TIME TO FILE MOTION.

1. Profits derived by a cashier of a bank from a sale of bonds negotiated by him while cashier, and in the discharge of his duties as such cashier, belong to the bank.

2. In an action by a bank on its cashier's bond for commissions alleged to have been converted by him, arising out of the sale of certain bonds, it is proper to nonsuit plaintiff, where it did not show that the cashier had actually received any compensation or profit out of such sale.

3. Rev. St. 1889, § 2243, requiring all motions for new trials to be made within four days after the trial, if the term shall so long continue, is mandatory, so that a motion for a new trial filed in due time, cannot be amended after the four days by adding an additional ground therefor, even though such additional ground be that of newly-discovered evidence.

Appeal from circuit court, Lawrence county.

Action by the Mt. Vernon Bank against John D. Porter and others. There was a judgment of the St. Louis court of appeals reversing a judgment for defendants (65 Mo. App. 448), and the case was certified to the supreme court. Reversed.

H. Brumback, Norman Gibbs, and Samp. Jennings, for appellant. W. B. Skinner and Mann & Talbutt, for respondents.

BURGESS, J.

This is an action upon the defendant Porter's official bond, as cashier of the plaintiff bank, charging him with converting commissions belonging to the bank, and arising out of the negotiation and sale of certain bonds issued by the Pierce City Water Company, while he was cashier of the bank. The trial resulted in a judgment for defendants; whereupon the case was appealed to the St. Louis court of appeals, where the judgment was reversed, but the case was certified to this court upon the ground that the opinion of that court is in conflict with the opinions of the supreme court in State v. Brooks, 92 Mo., loc. cit. 591, 5 S. W. 272, 330, and State v. Dusenberry, 112 Mo., loc. cit. 295, 20 S. W. 466. The petition alleges that Porter, while in the employment of plaintiff and in the line of his employment of cashier, "did negotiate and sell for Jerry Guinney and for the Pierce City Water Company fifty bonds, of the face value of $25,000, and for commissions and compensation for such services did collect, retain, and receive from said Jerry Guinney and the Pierce City Water Company and William C. Little Bond Company a thousand dollars, and retained and appropriated the whole thereof," etc. The answer of Porter is a general denial. The other defendants answered separately, and alleged that the sale or negotiation of bonds by the plaintiff was not within the bank's corporate powers, and that, if Porter received and converted the commissions as claimed, they, as his bondsmen, were not liable therefor. At the close of plaintiff's evidence, the court, at the request of the defendants, instructed the jury "that, under the pleadings and evidence in this case, your verdict should be for defendants"; whereupon plaintiff took a nonsuit, with leave to move to set the same aside, and, having unsuccessfully done so, it appeals.

The evidence on the part of plaintiff showed that Jerry Guinney, president of the Pierce City Water Company, acting for the company, placed in the hands of the defendant Porter $25,000 of Pierce City water bonds; that he negotiated with and through the bank several loans; that the last one, of about $2,000, was after the bonds were in the possession of the bank, and that this loan was not to be paid until the bonds were sold; that he (Guinney) realized only $22,500 on the bonds, and perhaps some interest, which ought to have been about $200. W. C. Little testified that he was president of the W. C. Little Bond Company in 1888, and that the company of which he was president bought the bonds, the amount of which was $25,000, and paid 90 cents on their face value therefor, but could not say to whom he paid the purchase money, whether to Porter or Guinney. F. W. Stumpe, cashier of the Washington Bank, testified that he bought 50 bonds, of $500 each, making a total of $25,000, from the W. C. Little Bond Company, of St. Louis, Mo., and paid $23,000 for them; that the bank loaned the plaintiff $5,000, and that when the loan was made the Washington Bank was, and for some time had been, negotiating with the W. C. Little Bond Company and John D. Porter for the purchase of the Pierce City Water Company bonds, and had advanced to said Porter, as cashier of the Mt. Vernon Bank, on account of the purchase of said bonds, because they were not then ready for delivery, and that the note was paid by the delivery of the bonds; that the loan thus made to the Mt. Vernon Bank was paid out of the purchase price for the bonds. J. T. Potter, president of plaintiff bank, testified that Guinney applied to the bank for a loan of $3,500, and that Porter said it would only be a short time until he would get the money out of the bonds, and that they had better guaranty the payment of this $3,500 note as individuals, but probably not as a bank, and that he and Porter guarantied the payment of this $3,500; that this note was negotiated, and the money paid over to Guinney; that "the inducement was that we were to get the premium out of the bonds for the bank." In a letter by Porter to F. W. Stumpe, cashier, Washington, Mo., of date October 8, 1888, he said: "I have advanced Mr. Guinney on the sale $3,500, and he wants more by the tenth inst. * * * John D. Porter, Cash." Porter, in his correspondence with Little about the sale of the bonds, used the bank's paper, with its letter heads thereon, and his letters were usually signed as cashier. He went to Pierce City on one occasion to negotiate for the bonds,...