People's Bank v. Rankin

• Decision Date: 29 July 1930
• Docket Number: No. 4590.,4590.
• Citation: People's Bank v. Rankin, 30 S.W.2d 638 (Mo. App. 1930)
• Parties: PEOPLE'S BANK OF AVA v. RANKIN et al.
• Court: Missouri Court of Appeals

30 S.W.2d 638

PEOPLE'S BANK OF AVA v. RANKIN et al.

No. 4590.

Springfield Court of Appeals. Missouri.

July 29, 1930.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

"Not to be Officially Published."

Suit by the People's Bank of Ava, a corporation, against Allen M. Rankin and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

F. M. McDavid, of Springfield, Alfred Page, of Washington, D. C. and Val Mason, of Springfield, for appellant.

Orin Patterson, of Springfield, and Hiett, Lamar & Covert, of Houston, for respondents.

SMITH, J.

This is a suit to recover the sum of $2,000, with interest and attorney fees, the proceeds of a certain promissory note executed by the defendants. There was a verdict and judgment in favor of the defendants, and plaintiff has appealed.

This is the second appeal in the case. See People's Bank of Ava v. Rankin, 220 Mo. App. 205, 282 S. W. 91, where the facts are stated. Both parties to this litigation concede that the facts are practically the same in this trial as at the former trial, and we have examined the testimony and agree that the facts are practically the same, with a few exceptions which have been called to our attention by the appellant, and which exceptions we shall note further along in this opinion.

Since the facts in the second trial are practically the same as at the first trial, for a statement of the facts we refer to the opinion in 220 Mo. App. 205, 282 S. W. 91, instead of restating the facts here. Practically all the law in the case was passed on in the opinion written on the former appeal and practically all the points raised here were passed on in the former opinion, and we think it not necessary to reconsider those points here, and we shall consider such as res adjudicata, in view of the fact that we think the holding in the former appeal was proper. Austin-Western Road Machinery Co. v. Commercial State Bank (Mo. App.) 282 S. W. 105; Seibert v. Harden, 319 Mo. 1105, 8 S.W.(2d) 905.

This court granted a new trial when here before because of error in refusing an instruction requested by plaintiff, which instruction is set out in the opinion, and suggested that in a new trial the question of estoppel might be submitted to the jury.

The plaintiff in its statement says: "To a large extent the testimony in the present case was the same as heretofore, but in two essential respects there is a difference. On the former trial the deposition of Alfred A. Hart was not used. Upon this trial the defendant introduced his deposition taken in the city of St. Louis. By this deposition it appears that Scott & Alessi, who wrote the letter of January 10, upon which the defence in this case is based, were stock salesmen of the Industrial Transportation Company, with offices at Springfield, and were called Zone Managers. That they were acting as agents of the Industrial Transportation Company under a written contract defining their authority." The plaintiff then insists that even though they were authorized salesmen, as testified to by Hart, yet that testimony showed they were acting under a written contract, and that there is not any testimony to show that said written authority permitted Scott & Allessi to bind the Industrial Transportation Company by the statement contained in their letter of January 10, 1921, and that the testimony of Hart shows their authority was limited under the written contract, and the testimony further shows that they were not permitted to sell stock except for cash, and that there was no evidence to show that Scott & Allessi knew the note was taken.

We think the testimony of Hart does show that Scott & Allessi were authorized agents of the Industrial Transportation Company, and since their letter made special reference to the return of money or notes to the investors, it was evidence of their knowledge that notes had been or might be taken and that representations were being made with reference to the conditions under which such notes were being taken. Whether they were authorized to bind the company or not, since they were agents of the company, their statement to the plaintiff, through its cashier, that the investors would receive the return of their money or notes if the store was not put in at Ava, was competent, and at least sufficient to submit to the jury the question of notice to plaintiff, and the question of knowledge as to the circumstances under which the note was given, and this is especially true in view of the interesting fact, as shown by the evidence, that the cashier of plaintiff, who was acting for plaintiff, obtained the return of his note as well as those of a special friend, in exchange for the note of the defendant.

The testimony of the cashier of the plaintiff was that he had this letter to the effect that the ...