Shepard v. Bank of Missouri

• Decision Date: 31 October 1851
• Parties: SHEPARD v. THE BANK OF THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

15 Mo. 143

SHEPARD

v.THE BANK OF THE STATE OF MISSOURI.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

The plaintiff filed his petition in the St. Louis Circuit Court on the 4th of September, 1849, alleging, that he had made deposits of cash at the Bank of the State of Missouri, between the first of April, 1842, and the first of August, 1846, to the amount of $37,771 90, with an exhibit of the items; admitting credits for payment to the amount of $35,071 90, and claiming a balance due him, on the first of August, 1846, of $2,700. The answer of the defendant denies owing the plaintiff anything. It admits that the plaintiff deposited large sums with the bank between the first of April, 1842, and the 12th of October, 1849, and it does not deny that the sums deposited by the plaintiff amounted, as stated in the petition to the sum of $37,771 90. The answer alleges, by way of defense, that the bank had paid the whole sum deposited, on checks of the plaintiff to the holders thereof; and that the greater part of these checks had been canceled and delivered up to the plaintiff, according to the usage of the bank; and further, that the plaintiff had overdrawn his account to the amount of $9 72, and that he was still indebted to the bank for that sum. There was a replication, denying this indebtedness.

When the case was about to be called for trial, the defendant's counsel moved the court for an order of reference of the case to a referee, under the provisions of the new Code of Practice, to take and state an account between the parties. The order was made, and the plaintiff excepted, and filed his bill of exceptions. The plaintiff then filed his motion to set aside the order of reference, which was overruled, and a bill of exceptions filed.

When the case came on for a hearing before the referee, he proceeded, in fact, as if trying the whole issues in the case. The plaintiff read the pleadings by which his demand was admitted; and the defendant then, in support of the defense set up in the answer, called, as a witness, the first individual bookkeeper of the bank, during the time of this account; and was proceeding to verify the entries in the plaintiff's account in the books of the bank, with a view of offering the books in evidence, without having first proved, or attempted to prove the existence and loss or destruction of the checks, or to account for them, to which the plaintiff's counsel objected. The objection was overruled and exception taken. The defendant proved with the testimony of the witness, who stated, in substance, that the entries were in his own handwriting; that they were made in the regular course of business, at the times of their dates; that his practice was to make his entries from checks or notes of the customer, or tickets of the tellers, taken from the teller's files; that they were first entered in the cash-book, and then in the ledger, and the ledger was then verified by comparison with the cash-book; that the notes of the customer falling due at the bank were sometimes, by his request (when he had money on deposit), placed in the teller's files as checks, and that tickets of the teller's for balances, or to correct miscalculations or otherwise, were also placed on the file, and in either case, charged in the ledger as checks, and that he could not distinguish such items, except when, in some instances, a ticket was charged in the ledger as a ticket; that he believed he never made entries without having a check, or some such evidence of authority before him, and that when he made these entries in the plaintiff's account, believed he must have had such evidence before him, though he had no knowledge or remembrance of the checks, or the particular transactions independent of the books. He also stated, that he had long been acquainted with the hand-writing of the plaintiff, and that the plaintiff had an account at the bank during the time of these entries. It also appeared that the entries in the books of the bank, corresponded with each other and with the account written in the plaintiff's bank book (which was produced at the instance of the defendant), after it had been handed into the bank to be written up, and with the account exhibited with the answer of the defendant, except a difference of ten dollars in the last balance, which produced a difference in the result, between said account exhibited, and the books of the bank, and the account written into the plaintiff's bank-book, of $9 72 in favor of the defendant, instead of 28 cts. in favor of the plaintiff. The form of these entries was as follows: “The Bank of the State of Missouri in account with Elihu H. Shepard--13 April, 1842, by chk. $2 83.

The entries having been verified in this way, the books were offered in evidence, admitted and an exception taken.

All the evidence offered by the defendant was objected to by the plaintiff's counsel, on the ground of incompetency in general, on the issues in the case, as well as on the ground that the existence of genuine checks had not been shown; that it was secondary evidence. That the best evidence had not been produced, nor properly accounted for.

The report of the referee finds a balance due the plaintiff of $13 11. On the testimony of the witnesses and the books, taken together the referee bases his conclusion, “that genuine checks, or notes, drawn by the plaintiff, or by some person authorized by him, did exist, and that they were paid by the bank, and that such checks or notes corresponded in number and amount with the charges made by the defendant in its account.” He rejects, at the same time two items which were tickets of the teller, for the reason, says the report, “that the testimony does not connect the plaintiff with them,” and “he cannot admit the books as evidence of themselves, to establish a charge against the plaintiff.” These two items, one of $10 and the other of $2 83, added to the balance of 28 cts. found due the plaintiff at the last settlement, make up the sum for which the plaintiff has judgment

The report having been filed, the plaintiff filed a motion to set aside the finding of the referee, and give judgment for the plaintiff for the whole sum claimed by him on the evidence reported, and his exceptions to the report The plaintiff also asked, that in case the finding of the referee should be set aside, and the judgment should not be given for the whole sum demanded in the evidence reported, that the cause should then be set down for a trial by jury, or for a hearing by the court, on such evidence as might be produced on either side. The court overruled the motions and exceptions, affirmed the report and gave judgment accordingly. The plaintiff excepted, filed his bill of exceptions, and took his appeal to this court

HOLMES & HOLMES, for Appellant.

I. This was not a proper case for a reference, under the new Code of Practice, because 1 The issues to be tried, did not involve the investigation of a long account on either side, but sim ply the question of payment by the defendant, on checks of the plaintiff to the holders thereof, to the amount admitted to have been deposited, and $9 72 more. The plaintiff's case, not being expressly denied, stood admitted--Code of Prac., art. 7, § 12; and the defense was, payment to third persons on checks of the plaintiff. 2. It was not a case for an action of account at law, nor of equity jurisdiction, requiring an account to be taken and stated between the parties for the information of the court, before a final hearing and judgment, or decree. 1 Com. Dig. 115, title Account (A 1): an action of account lies only against a man as guardian, bailiff or receiver Dinwiddie v Bailey, 6 Ves. 136. 3. The plaintiff was entitled to a trial by jury, but if the case was to be referred at all, without his consent, it should have been referred with directions to the referee to try the issues. Code of Prac. art. 16, § 2, 1 Chitty's Pl. 116. 4 The new Code of Practice, so far as it can be properly construed so as to authorize an order of reference of a case like this, for a trial by referee without the consent of parties deprives the parties of this right of trial by jury, and is therefore unconstitutional. Const of Mo art. 13, § 8

II The referee did not merely take and state an account as ordered, but in fact proceeded to try the issues, and reported a finding of $13 11, in favor of the plaintiff, which was treated by the court as a verdict, the report affirmed and judgment given accordingly, without any further trial by jury, or hearing by the court

III The plaintiff's motion to set aside the finding of the referee and for judgment for the plaintiff, on the evidence reported, notwithstanding the verdict of the referee, for the full sum claimed by him, should have been sustained, because 1 The evidence offered and admitted before the referee, was not sufficient in law to establish the defenses set up in the answer of either of them 2 Incompetent evidence was admitted, for 3 On the issues made by the pleadings, the checks themselves, as negotiable instruments, and as containing the written authority to the bank to pay away the plaintiff's money to third persons, the holders thereof, have the legal character of best evidence, and no evidence of a secondary nature was admissible until the checks were produced, or properly accounted for 1 Greenl Ev §§84, 87 the written instrument, especially in case of negotiable securities, is to be regarded as the ultimate fact to be proved It is the evidence agreed upon by the parties, it is not collateral but the very essence of the transaction 1 Cow & Hill's Notes. 541, 549, 691, 697 Prince's Adm'r v Smith. 4 Mass R 455, books are not admissible to prove the payment of money on orders, because the orders are the best evidence Nye v Bellam, 18 Verm 599. Tenbroke v Johnson, 1 Cox (N J.) R 288. Books are not evidence of payment to third persons Bram v Kinlock, 2 Speers, 284, ...