Murray v. Farmers' & Merchants' Bank

• Decision Date: 25 November 1918
• Docket Number: No. 2366.,2366.
• Citation: 206 S.W. 577
• Court: Missouri Court of Appeals
• Parties: MURRAY v. FARMERS' & MERCHANTS' BANK.

206 S.W. 577

MURRAY v. FARMERS' & MERCHANTS' BANK.

No. 2366.

Springfield Court of Appeals. Missouri.

November 25, 1918.

Appeal from Circuit Court, Dent County; It. B. Woodside, Judge.

Action by R. S. Murray against the Farmers' & Merchants' Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

McGee & Bennett, of Salem, for appellant. J. J. Cope, of Salem, for respondent.

FARRINGTON, J.

The appellant, defendant, appeals from a judgment against it, rendered in a suit wherein the plaintiff alleges that, to secure the payment of his note of $43.20, he deposited with the bank a note signed by A. E. McNeill and others, Payable to plaintiff, drawing interest at 8 per cent. per annum. It is further alleged that his indebtedness to the bank of $43.20 had been fully paid and discharged, and that the bank had failed and refused to return to him his note of $85, left as collateral security. He prayed judgment for the sum of $85 and interest.

The defendant entered a general demurrer to the petition, which was overruled. Thereupon a general denial was filed. The case was tried by a jury, who returned a verdict in plaintiff's favor for $91.80, which was the principal and interest due on the note of $85.

We have stated the substance of the petition, and, while some complaint is made in appellant's brief concerning it, the petition does state a cause of action, and, while it may have contained some unnecessary surplusage, it was good to withstand a demurrer, and all defects were waived when the case went to trial on overruling the general demurrer.

The issue made by the evidence, and submitted to the jury in the instructions, was whether the $85 note was ever deposited with the bank by the plaintiff. The plaintiff and his brother, on the one hand, testifying expressly that the cashier of the bank called him in and spoke about his indebtedness, and the fact that it was unsecured, and that thereupon the plaintiff left with the cashier of the bank the $85 note heretofore referred to, and that the note was taken by the cashier without any indorsement when placed with him. The undisputed testimony is that the plaintiff left for St. Louis for work, and that he sent back money paying off his indebtedness to the bank, for which he alleges he had pledged the $85 note. It appears that the note came into the hands of one Rubenstein, who says that he bought the note from the father of the plaintiff, and admits that he himself wrote the plaintiff's name on the back of the note without any authority from the plaintiff. It also clearly appears that McNeill paid the note to...