Ray County Savings Bank v. Hutton

• Citation: 123 S.W. 47
• Parties: RAY COUNTY SAVINGS BANK v. HUTTON.
• Decision Date: 29 November 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 47

RAY COUNTY SAVINGS BANK v. HUTTON.

Supreme Court of Missouri.

November 29, 1909.

1. APPEAL AND ERROR (§ 242) — PRESENTATION BILL — ACTION OF TRIAL COURT — RULINGS ON OBJECTIONS — NECESSITY.

Where the trial judge stated that he would rule upon objections to evidence when he passed upon the case and no objections were taken to such course, and no ruling was subsequently made upon the objections, and no exception was taken to the failure to rule when judgment was rendered, the Supreme Court cannot consider the objections to the admission of the evidence under Rev. St. 1899, § 864 (Ann. St. 1906, p. 808), forbidding exceptions to be allowed on appeal except such as were expressly decided by the circuit court.

2. TRIAL (§ 85) — EVIDENCE ADMISSIBLE IN PART — OBJECTIONS.

Where only part of testimony was inadmissible, etc., and the rest of it was proper, the objection thereto should have specified the objectionable part, and a general objection is bad.

3. TRIAL (§ 96) — RECEPTION OF EVIDENCE — STRIKING EVIDENCE — EVIDENCE ADMISSIBLE IN PART.

Where a part of testimony objected to as hearsay is admissible, a motion to strike all of the testimony is improper.

4. APPEAL AND ERROR (§ 580) — RECORD — BILL OF EXCEPTIONS — PRINTING WHOLE BILL — PROPRIETY.

Under Supreme Court rule 17 (73 S. W. vii), allowing costs for printing where appellant files in the Supreme Court a printed copy of the entire record for an abstract, the entire record may be printed by appellant, instead of an abstract, so that appellee cannot complain if the whole bill of exceptions is printed.

5. APPEAL AND ERROR (§ 586) — RECORD — JUDGMENT AND ORDER GRANTING APPEAL — READING INTO RECORD.

The Supreme Court will read into the abstract of the record the certified copy of the judgment and order granting an appeal originally lodged in that court.

6. EVIDENCE (§ 41) — JUDICIAL NOTICE — TERMS OF CIRCUIT COURTS.

The Supreme Court will take judicial notice of the commencement of the terms of the circuit court of a county.

7. APPEAL AND ERROR (§ 586) — ABSTRACT OF RECORD — CONSTRUCTION — MOTION FOR NEW TRIAL — TIME OF FILING.

A recital in the abstract of the record that an order was entered of record "by said court" reciting the filing of a motion for new trial necessarily implied that the court was in session, and not in vacation when the order was entered.

8. EXCEPTIONS, BILL OF (§ 56) — SIGNING — PLACE OF SIGNING.

The trial court should sign the bill of exceptions at the end thereof.

9. EXCEPTIONS, BILL OF (§ 6) — CONTENTS — RECORD PROPER.

The record proper does not belong in the bill of exceptions.

10. APPEAL AND ERROR (§ 938) — PRESUMPTIONS — SIGNING BILL OF EXCEPTIONS.

Where the abstract of the record recited that the circuit court made the bill of exceptions a part of the record, it will be presumed on appeal that it proceeded properly in doing so, and took all the preliminary steps necessary to make it legal, so that it will be presumed that it was properly signed.

11. APPEAL AND ERROR (§ 756) — BRIEFS.

Under Supreme Court rule 15 (73 S. W. vi), requiring the briefs to contain separate from the argument or discussion of authorities, a statement of the points relied on, and requiring appellant's brief to separately allege the errors below, and providing that any brief not complying with the rule may be disregarded, an appellant's brief which does not distinguish and separate the facts, points, and authorities cannot be considered; appellant having the burden of showing errors in the judgment in accordance with the rules of court.

12. APPEAL AND ERROR (§ 756) — BRIEFS — RESPONDENT'S BRIEFS — CONFORMITY TO COURT RULES — NECESSITY.

Since respondent need not submit briefs on appeal, the form of his brief is immaterial, so that the Supreme Court may consider it, though it commingles facts, points, and authorities, in violation of rule 15 (73 S. W. vi).

13. CORPORATIONS (§ 361) — OFFICERS — LIABILITY FOR FRAUD — SUFFICIENCY OF EVIDENCE.

In an action for damages for defendant's fraud in indorsing a renewal note to plaintiff, executed to the company of which defendant was vice president, at a time when defendant's company was insolvent, upon false representations that the note was secured by cattle, evidence held to show that defendant's company was solvent and believed to be so when the note was indorsed, and not to show that defendant procured the renewal in order to defraud, knowing that it was then unsecured.

14. CORPORATIONS (§ 335) — OFFICERS — LIABILITY — FRAUD — KNOWLEDGE — NECESSITY.

In an action against the vice president of a corporation for fraud in transferring a note executed to the company, defendant cannot be charged with acts of the company or other officers without proof of his knowledge of, or participation in, such acts.

15. CORPORATIONS (§ 335) — OFFICERS — FRAUD — CONSTRUCTIVE KNOWLEDGE.

Knowledge of the details of the business of a large corporation divided into various departments

and operating over a large territory cannot be charged to the highest officer, whose duty is to conduct the general course of the business merely because of his official position, so as to make him personally responsible for fraud in connection therewith.

16. FRAUD (§ 11) — REPRESENTATIONS — EXPECTATION.

Fraud cannot be based on an opinion given in good faith, as that a note will be met promptly when due.

17. FRAUD (§ 3) — ELEMENTS — KNOWLEDGE.

Scienter is an essential element of fraud.

18. FRAUD (§ 9) — MISREPRESENTATIONS — CONSTRUING WRITINGS.

In determining whether certain writings constitute fraudulent misrepresentation of facts, the words should not be construed too loosely, or given too wide a meaning so as to make them fraudulent, and all doubts should be resolved in favor of good faith.

19. CORPORATIONS (§ 335) — OFFICERS — LIABILITY — FRAUD — CONSTRUCTIVE FRAUD.

The president of a corporation, by signing a letter prepared by another employé and inclosing therewith documents furnished by him, does not make the statements in such documents his own by inclosing them, so as to make him liable for actual fraud if such statements are false.

20. FRAUD (§ 13) — DEFINITION.

In an action for deceit, actual fraud must be shown by showing that a false representation has been knowingly made without belief in its truth, or made recklessly without knowledge of its truth or falsity.

21. FRAUD (§ 13) — ELEMENTS — FRAUDULENT REPRESENTATIONS — STATEMENTS RECKLESSLY MADE.

While a false statement made recklessly and without reasonable ground for belief in its truth may be evidence of fraud, it does not necessarily amount to fraud, and, if honestly made, does not of itself impose liability in an action for deceit.

22. CORPORATIONS (§ 361) — OFFICERS — LIABILITY — ACTIONS — FRAUDULENT REPRESENTATIONS.

In an action for damages caused by defendant's deceit in indorsing a renewal note, with other notes, to plaintiff, executed to the company of which defendant was vice president, by, falsely representing in a letter that the notes were renewals except one, for which ample provision was made in the company's form of mortgage, when the renewal note was not in fact secured, evidence held to show that the statements in the letter and notes were literally true, so that they did not amount to such reckless misstatements of fact as to make defendant liable for fraud.

23. CORPORATIONS (§ 325) — OFFICERS — FRAUD — NONFEASANCE.

While the vice president of a corporation, would be personally liable for injury to another caused by his actual fraud, such an agent is not liable to third persons for negligence or nonfeasance; the corporation being liable.

24. PRINCIPAL AND AGENT (§ 136) — AGENT'S LIABILITY — LIABILITY TO THIRD PERSONS.

As a rule, a third person contracting with a known agent contracts on the credit of the principal, and not of the agent, and the latter is not liable except in a tort action for fraud.

25. FRAUD (§ 58) — PROOF — ACTUAL FRAUD — NECESSITY.

The difficulty of proving actual fraud does not obviate the necessity of doing so; and mere suspicion, insinuation, or presumption is not sufficient.

26. APPEAL AND ERROR (§ 1008) — FINDINGS — CONCLUSIVENESS — FINDINGS BASED ON WRITINGS.

While the appellate court is ordinarily bound by the findings of the trial court in a law case, where the finding, such as fraud, is based upon a written instrument, the appellate court will decide the question independent of the trial court's finding; it not occupying a superior position to the appellate court in making such a finding.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by the Ray County Savings Bank against Thomas S. Hutton. From a judgment for plaintiff, defendant appeals. Reversed.

Botsford, Deatherage & Creason, for appellant. J. S. Rust and J. L. Farris, Jr., for respondent.

LAMM, J.

Suit for fraud and deceit. Defendant was vice president of a corporation known as "Strahorn-Hutton-Evans Commission Company." It will be called the "company." Plaintiff will be called the "bank." The bank bought at a discount from the company a note known as the "Huntley note," for which it paid $5,856.49. Failing to collect from the payors or the indorser (the company), the bank sues to recover that sum from defendant. A jury being waived, the court gave judgment for $6,882.07, filing the following memorandum: "While a decision for the plaintiff in this case must necessarily result in great hardship to the defendant, yet it is the duty of the court to declare the law as announced by the Supreme Court of the state, and under the facts and the law as thus declared the judgment must be for the plaintiff." From that judgment, defendant appeals.

The pith of the petition is that the bank was doing a general banking business at Richmond; that the company had an office in Kansas City, Kan., under the control of defendant, one of its executive officers; that the company on ...