People's Bank v. Stewart

• Decision Date: 08 January 1912
• Citation: 160 Mo. App. 643,142 S.W. 789
• Parties: PEOPLE'S BANK v. STEWART.
• Court: Missouri Court of Appeals

142 S.W. 789

160 Mo. App. 643

PEOPLE'S BANK v. STEWART.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. GUARANTY (§ 86)—ACTIONS—PLEADING.

In an action on a guaranty of overdrafts, defendant admitted the execution of an order described in the fourth count of the petition, but denied the execution of those described in the other counts, and further alleged that the orders alleged to have been executed by the defendant, and upon which plaintiff alleged it advanced money, only requested plaintiff to allow the firm named therein to overdraw at plaintiff's bank for a particular week, and that defendant only offered to guarantee the repayment of said overdraft. Held, that defendant denied that he executed the orders described, and alleged that any orders he did give were only offers of guaranty that required notice of acceptance and failure of the firm making the overdraft to pay.

2. APPEAL AND ERROR (§ 1195)—REMAND—LAW OF THE CASE.

Where, on appeal in an action on a guaranty of overdrafts, the appellate court holds that the testimony of plaintiff's president was sufficient to carry the case to the jury on a specified issue, and the president testifies on a new trial that his former testimony is correct, the issue was properly submitted to the jury.

3. APPEAL AND ERROR (§ 1195)—PROCEEDINGS AT NEW TRIAL — ADMISSION OF EVIDENCE.

Where on appeal certain evidence is held competent and the case is reversed and remanded, the trial court commits no error in admitting the same evidence on the new trial.

4. APPEAL AND ERROR (§ 1064)—REVIEW—HARMLESS ERROR—INSTRUCTION.

In an action on a guaranty of overdrafts, the error in an instruction which makes defendant's liability dependent, not only on his agreement, but on his intention to guarantee payment, is harmless.

5. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR.

An error in an instruction cannot be complained of on appeal, where the same error is found in one of appellant's instructions.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Action by the People's Bank against Peter W. Stewart. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 152 Mo. App. 314, 133 S. W. 70.

Neale & Newman and I. V. McPherson, for appellant. John L. McNatt and W. B. Skinner, for respondent.

GRAY, J.

A history of this suit and the understanding of its facts and issues may be found in the opinion of this court on a former appeal, and reported in 152 Mo. App. 314, 133 S. W. 70. When the case was remanded, an amended answer was filed, but otherwise the pleadings were the same as in the former appeal. The amended answer admitted the execution of the order described in the fourth count of the petition, but denied, under oath, the execution of the orders described in the other counts. The answer further alleged: "Defendant says and avers that the orders alleged to have been executed by the defendant, and upon which the plaintiff alleges it advanced money to the said Roley & Co., only requested the plaintiff to permit the said Roley & Co. to overdraw and check at the plaintiff's bank for a particular week to meet the pay roll of the said Roley & Co., and that defendant only offered to guarantee the repayment of said overdraft, etc."

It is the contention of the plaintiff that this answer admitted that the orders were in the form described in plaintiff's petition. This part of the answer was the same as the answer in the former appeal, and we did not, in reviewing the case, give the answer this construction. It seems to us that it is plain the defendant was denying that he executed the orders described, but that any orders he did give were only offers of guaranty that required notice of the acceptance and failure of Roley & Co. to pay.

The appellant makes the further claim that there was no evidence offered at the...