Rose v. First Nat. Bank of Springfield

• Citation: 3 S.W. 876,91 Mo. 399
• Parties: Rose v. First National Bank of Springfield, Appellant
• Decision Date: 21 March 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 876

91 Mo. 399

Rose v. First National Bank of Springfield, Appellant

Supreme Court of Missouri

March 21, 1887

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Reversed.

S. H Boyd and O. H. Travers for appellant.

(1) The petition in this case alleges that the plaintiff made a demand, through a check drawn on defendant, for the sum of two hundred dollars, the amount sued for. Not only is this an allegation which the law requires to be proven, because it is a material allegation made in the petition, but it is well known that, according to the rules and customs of banking and the law which governs banking, before the depositor can withdraw his funds, he must make a written demand, in form of a check. No such proof was made in this case. The plaintiff testified to presenting a check to defendant about January 1883, but does not give the amount, and for aught that appears in the testimony, it may have been a much larger sum than plaintiff claimed. As this is a total failure of proof, on this point, the verdict should have been set aside. (2) The court erred in permitting the plaintiff to inquire of defendant about the signature to the two blank checks, and in suffering Scott Massey to answer as to the time when and as to the person who wrote these signatures. In this connection, it must be remembered that McElhany was the cashier of defendant, almost the defendant itself, in the eyes of the jury trying the case, and every word which he would utter on the witness-stand (especially if against the defendant in the least), would carry great force, and affect defendant's case accordingly. It was an attempt to impeach McElhany on an immaterial matter, but at the same time on a matter which, to the ordinary juryman, would appear quite material and important. A witness can only be contradicted or impeached on material matters, and then only in the way pointed out and authorized by law. People v. Bush, 18 Cent. Law Jour. 335; 1 Greenl. on Evid. [12 Ed.] sec. 461, 455, et seq.; Lohart v. Buchanan, 50 Mo. 201; McKern v. Calvert, 59 Mo. 243; Bank v. Murdock, 62 Mo. 70.

Massey & McAfee for respondent.

The cashier was a competent witness, and his proficiency, as an expert, was a proper matter of inquiry, on cross-examination, and there was nothing wrong in the method adopted by plaintiff to test the acuteness or correctness of him as an expert.

Black J. Norton, C. J., and Sherwood, J., absent.

OPINION

Black, J.

This was an action to recover a balance of two hundred dollars claimed to be due on plaintiff's deposit account. The bank had paid and charged to his account a check for a like amount, purporting to be signed by the plaintiff. Whether this check was genuine or a forgery was the issue tried.

For the defence, the cashier testified that he knew the plaintiff's handwriting. He examined the disputed check and several other checks, then in evidence for other purposes, and conceded to be genuine, and stated that the signatures to all of the checks were in the handwriting of the plaintiff; that they were all alike. On cross-examination, counsel for plaintiff placed before the witness the name of W. P. Rose, written upon two blank checks, concealing from his view the other portions of the checks, and asked him in whose handwriting these signatures were. Witness answered that if checks, signed as these were, were presented to the bank, he would pay them as Rose's checks. Plaintiff, in rebuttal, called another person, who stated that he wrote the name of W. P. Rose on the blank checks, during the progress of the trial. Objections were made to the above cross-examination and examination in rebuttal.

Where there are other writings in the case, conceded to be genuine, they may be used as standards of comparison, and the comparison may be made by the jury, with or without the aid of experts. 1 Greenl. on Evid., sec. 578; State v. Scott, 45 Mo. 302; State v. Tompkins, 71 Mo. 613. But with us, such papers can only be used when no collateral issue can be raised concerning them. 1 Greenl. on Evid., sec. 581; State v. Clinton, 67 Mo. 380. The signatures upon the blank checks were designed to, and did, present a collateral issue, and under the rule before stated, the witness should not have been questioned as to them, unless the rule is to be relaxed in favor of a cross-examination.

In Griffith v. Ivery, 11 A. & E. 322, the...