People's Bank v. Stewart

• Decision Date: 09 March 1909
• Citation: 136 Mo. App. 24,117 S.W. 99
• Parties: PEOPLE'S BANK v. STEWART.
• Court: Missouri Court of Appeals

117 S.W. 99

136 Mo. App. 24

PEOPLE'S BANK v. STEWART.

St. Louis Court of Appeals. Missouri.

March 9, 1909.

1. APPEAL AND ERROR (§ 699) — RECORD — SUFFICIENCY OF BILL OF EXCEPTIONS.

Where the bill of exceptions do not show that the court modified instructions as claimed, error in the alleged modifications cannot be considered on appeal.

2. TRIAL (§ 251) — INSTRUCTIONS — APPLICABILITY TO PLEADINGS.

In an action by a bank against a person on his orders upon which a firm had been allowed to overdraw its account, where defendant did not plead payment of the orders sued on, a modification of charges permitting defendant's recovery if plaintiff had accepted from the firm its note in full satisfaction of defendant's liability would be improper.

3. APPEAL AND ERROR (§ 274) — OBJECTIONS TO INSTRUCTIONS — SCOPE AND EFFECT.

An objection to the theory on which a case is tried is saved by exception to instructions given.

4. PLEADING (§ 93) — INCONSISTENT DEFENSES — PAYMENT AND NON EST FACTUM.

The plea of non est factum is not inconsistent with the plea of payment; defenses being inconsistent only when the proof of one necessarily disproves the other.

5. PLEADING (§ 79) — AFFIRMATIVE DEFENSES — NECESSITY FOR SPECIAL PLEADING.

The defenses of release because defendant was a surety, and was discharged for want of notice of certain facts, accord and satisfaction, payment, or any defense going to show the extinguishment of a cause of action which once existed are affirmative defenses, and as such must be specially pleaded.

6. PAYMENT (§ 60) — PLEADING.

Where payment is pleaded, the plea is held in law to mean payment in money, and, if payment is other than by money or if it rests on an independent agreement, the substantive facts of the agreement must be pleaded, and cannot be shown under a general denial or a simple plea of payment.

7. PLEADING (§ 90) — ANSWER — JOINDER OF DEFENSES.

The answer may contain as many defenses as defendant may have, provided they are separately stated and are consistent.

8. BANKS AND BANKING (§ 226) — ACTIONS — ISSUES AND PROOF — EVIDENCE ADMISSIBLE UNDER PLEADINGS — GENERAL DENIAL.

In an action by a bank on orders to the bank to allow a firm to overdraw its account, where the only defenses pleaded were a general denial of the execution of the orders or that anything was due on them and a plea of non est factum, it was reversible error to admit evidence of the affirmative defenses of suretyship of defendant, his discharge as surety and of payment, and to charge on those defenses.

Appeal from Circuit Court, Lawrence County; John C. Turk, Special Judge.

Action by the People's Bank against Peter W. Stewart. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The petition in this case is made up of six counts. The first and second counts were dismissed by plaintiff. The third, fourth, fifth, and sixth counts are on orders alleged to have been given by respondent to appellant. While the orders are for different amounts and giving different dates, they, so far as plead and proven, are substantially alike. Quoting the third count, it is as follows: "And, for another and further cause of action, the plaintiff states: That at all the dates and times mentioned in this petition it was a banking corporation organized under the laws of the state of Missouri, and was engaged in the banking business at Aurora, Mo., and that at all such dates and times Roley & Co. was a copartnership engaged in running and operating a zinc mine at Aurora, Mo. That on January 6, 1906, the defendant herein, Peter W. Stewart, by his written order of that date, duly executed by him and delivered to the plaintiff, which said order is lost and cannot be filed herewith for that reason, ordered and requested the plaintiff to advance to the said partnership of Roley & Co. such sum as was needed to meet the pay roll of the said partnership due to and including that date. That on the said date the plaintiff accepted the said order of the defendant and advanced to the said Roley & Co. on the said order and request of the defendant the sum then due by the said partnership on account of its pay roll which plaintiff alleges was the sum of $300, which said sum the plaintiff states it then paid on account of the said order of the defendant on account of the said pay roll of the said partnership of Roley & Co. Plaintiff further states that the defendant herein, Peter W. Stewart, had notice of the acceptance by the said plaintiff of the said written order aforesaid, and of the fact that the plaintiff had paid the sum aforesaid on account of the pay roll of the said partnership as aforesaid on his written order aforesaid. Plaintiff further states that no part of the said sum so paid by it on the order in writing aforesaid signed and delivered to it as aforesaid by the defendant has been paid to it by the said defendant or by the said partnership, but the whole thereof remains due and unpaid, although the same has been demanded of the said defendant, and from the said partnership. Wherefore the plaintiff demands judgment against the defendant for the said sum of $300, with interest thereon from January 6, 1906, at the rate of 6 per cent." The answer, after a general denial and omitting that part of it pertinent to the first and second counts, is as follows: "And, further answering, defendant denies that he is or ever was a partner in the mining partnership of Roley & Co., as set out in plaintiff's petition, and denies that he was a partner in such or any mining partnership or any other partnership that in any way became indebted to the plaintiff bank; and, further answering, defendant denies specifically that he made or executed either or any of the orders described in the plaintiff's petition in either of the counts therein, and denies that he authorized any one for him to make, execute, or deliver any such orders, and denies that he owes the plaintiff the sums described in the several counts set forth in its petition, or any sum whatever; that any orders which defendant may have given have long since been paid and discharged by said Roley & Co. Wherefore he prays to be discharged from further answering and that he recover his cost herein expended and laid out." This answer was sworn to by the defendant. Plaintiff filed a general denial in reply. At the close of the testimony in the case, defendant interposed an instruction in the nature of a demurrer, which was overruled. At the instance of the defendant, the court gave three instructions, marked "1," "2," and "5," which are complained of and which will be noted hereafter. It is set out in the bill of exceptions that exception was taken to the action of the court in giving instructions A, B, C, D, and E, as modified by the court. As will be noted, it is averred that the orders on which these four counts are based are alleged to have been lost or destroyed. The witnesses who testified as to the contents of the orders testified that they were substantially as follows: "Please allow Roley & Co. to overdraw the amount of their pay roll, as they did not get to turn in their ore for the week." That seems to have been the first order. The others appear to have read: "Allow Roley & Co. to check the pay roll." All the orders, so far as the testimony goes, were signed by respondent, P. W. Stewart. They were addressed to the People's Bank, the appellant here. A great deal of testimony was given to the effect that Stewart, being a responsible man and in some way interested in the mining and milling enterprise of Roley & Co., had given these orders at the various dates mentioned in the petition; that the pay rolls were cashed on his credit, and that the practice of the bank was, when the pay rolls came in from Roley & Co., to figure up the amount of the pay roll and take a note from Roley & Co. for that amount. As far as can be gathered from the testimony, these notes were demand notes, and were apparently discounted by the bank; the amount specified in them being placed to the credit of Roley & Co., and, as Roley & Co. turned in money from their operations, the amount turned in was credited to the account of Roley & Co. It is claimed by the respondent that these notes were taken in payment of the orders and in lieu of them, and that thereby the respondent, Stewart, was released from liability on these orders. During the cross-examination of a witness, counsel for respondent, after eliciting the fact that the witness was the cashier of the appellant bank, asked this question: "And you instituted this suit, gave the notes to the attorneys to sue on? Did you order them to sue anybody but Stewart?" This was objected to by counsel for appellant, and the objection sustained. Whereupon counsel for respondent asked witness this question: "Why didn't you sue Thorp and Thorp and Steve Roley? Mr. McPherson (counsel for appellant): We object to that as immaterial. (Objection sustained by the court, to which ruling of the court the defendant by his counsel duly excepted at the time.) Mr. McNatt: We offer to show by this witness that he has refused to file or sue Steve Roley and the two Thorps, who composed the partnership of Roley & Co., and that, therefore, the plaintiff in this action would not be permitted to recover at all until it is shown that he has exhausted his remedy. Under...