Stone v. St. Louis Union Trust Company
| Decision Date | 12 July 1910 |
| Citation | 130 S.W. 825,150 Mo.App. 331 |
| Parties | WILLIAM J. STONE, Receiver of Mullanphy Savings Bank, Respondent, v. ST. LOUIS UNION TRUST COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.
Judgment reversed and cause remanded.
Stewart Eliot, Chaplin & Blayney for appellant.
(1) A bank is not liable to a depositor for interest upon a deposit unless there is a contract between them calling for payment of interest. 3 Am. and Eng. Ency. Law (2 Ed.), p. 829; Zane Banks and Banking, sec. 159. (2) Where such a contract is alleged to be based on offers contained in published advertisements which are claimed to have been accepted by acting thereon, such advertisements, (a) Must amount to an offer in fact, and not a mere inducement or invitation to do business. 9 Cyc. 276; Anson on Contracts (1 Am. Ed., 1895), p. 47; Anderson v. Public Schools, 122 Mo. 61; Westervelt v. Demarest, 46 N.J. L. 37. (b) Must be sufficiently definite to form the basis of a contract; that is, must contain all of the terms of the alleged contract. 9 Cyc. 248; Lee v. Dodd, 20 Mo.App. 271, 281; Clark v. Railroad, 81 F. 282; Gafford v. Proskauer, 59 Ala. 264; Van Slyke v. Ins. Co., 115 Cal. 644. (c) Must have been communicated to plaintiff prior to making his deposit with defendant. 9 Cyc. 252, 254; Smith v. Vernon County, 188 Mo. 501. (d) Must have been acted on by plaintiff, that is, plaintiff must have made his deposit with defendant on account of and in reliance upon such advertisements. Smith v. Vernon County, 188 Mo. 501.
Pearce, Davis & Curlee for respondent.
(1) The abstract is insufficient in that it fails to show jurisdiction in this court. The abstract neither shows a filing in this court of a complete transcript, nor in lieu thereof what is called the "short record." Wagon & Buggy Co. v. Cornell, 131 Mo.App. 344; Harding v. Bedoll, 202 Mo. 630; Pennowfsky v. Coerver, 205 Mo. 136. (2) The court will not refer to the complete transcript to supply deficiencies in the abstract. Harding v. Bedoll, 202 Mo. 632; Vandeventer v. Goss, 190 Mo. 239. (3) All the facts and circumstances proved, are substantial evidence showing and do sufficiently establish that the receiver had knowledge of defendant's definite promise to pay interest on deposits at a definite rate. Knowledge may be shown by facts and circumstances as well as by direct testimony. Maupin v. Emmons, 47 Mo. 304; Shumate v. Reavis, 49 Mo. 333; Whitman v. Taylor, 60 Mo. 127; Van Raalte v. Harrington, 101 Mo. 602; Drey v. Doyle, 99 Mo. 459; Lemay v. Poupenez, 35 Mo. 71; Muldrow v. Robinson, 58 Mo. 331; State ex inf. v. Lincoln Trust Co., 114 Mo. 562. (4) Even though the receiver is not held to have had knowledge of the trust company's published rules fixing interest rates, yet if he knew that the trust company did hold itself out to the public that it would pay interest on deposits and if the receiver began his deposit intending to accept the terms offered by the trust company, whatever they were, then a contract thereby arose obligating the company to pay interest according to its fixed rules and the contract is made certain by reference to such rules and regulations according to the doctrine, id certum est quod certum reddi potest. 9 Cyc. 250; Anson on Contracts, p. 21 (Huffcut, 1895); Watkins v. Rymill, 10 Q. B. D. 178; O'Bryan v. Kinney, 74 Mo. 125; Kellerman v. Railroad, 136 Mo. 177; Snider v. Adams Express Co., 63 Mo. 376; Railroad v. Watson, 110 Ga. 681; Fonseca v. Cunard Steamship Co., 153 Mass. 553; Insurance Co. v. Neiberger, 74 Mo. 167; Vette v. Evans, 111 Mo.App. 594; McHoney v. Insurance Co., 52 Mo.App. 95; 2 Hutchinson on Carriers, sec. 1077.
--This is a suit on a contract for interests alleged to have accrued on a current account of funds deposited by the plaintiff receiver for several years with the defendant trust company. Plaintiff recovered and defendant appeals.
Before stating the case and disposing of the questions arising on the merits thereof, it becomes essential to notice certain preliminary arguments pertaining to the right of this court to review the appeal.
The case is here on a full transcript of the record as authorized by section 813, R. S. 1899, section 813, An. St. 1906. Defendant, appellant, has furnished the court an abstract thereof as well, but it is said this abstract is insufficient, first, for the reason that it does not show what judge presided at the trial of the cause. This is an error in fact, for upon examination, it is clearly disclosed that Hon. Robert M. Foster, judge of the circuit court of the city of St. Louis, presiding in Division No. 3 thereof, presided at the trial of the cause.
The second argument with respect to the insufficiency of the abstract is to the effect that it omits to show the judge who signed the bill of exceptions was either the judge who tried the cause or his successor in office. The bill of exceptions is signed by Judge George H. Williams as the judge presiding in Division No. 3 of the circuit court of the city of St. Louis at the time the bill was tendered, and the abstract recites that Judge Williams was the successor in office to Judge Foster who presided at the trial. So much appears clearly in the abstract of the record immediately above the certificate of the clerk of the circuit court evincing the transcript to be true and complete.
The third argument as to the sufficiency of the abstract is to the effect that it neither shows a filing in this court of a complete transcript nor in lieu thereof what is called the short record. It is true enough the printed abstract omits to state the filing of either a complete transcript or in lieu thereof that the appeal is prosecuted by the short form. But a complete transcript is before us and the file marks evince it to have been duly filed on a proper date. So much of section 813, Revised Statutes 1899, section 813, An. St. 1906, as is relevant to the filing of the transcript in the appellate court, when an appeal is not prosecuted on the short form, provides that the appellant shall cause to be filed in the office of the appellate court fifteen days before the first day of the term of such court a perfect transcript of the record and proceedings in said cause. As stated, the complete transcript contemplated by the statute is before us and an indorsement thereon by the clerk of this court shows it to have been filed in proper time for consideration.
There can be no doubt that the filing of the complete transcript within the time mentioned confers jurisdiction on the court to proceed and determine the appeal. The very terms of the statute referred to go to this effect. But, it is argued that though the court has jurisdiction in the premises, the merits of the appeal should not be considered for the reason the printed abstract omits to recite the fact that a complete transcript had been filed in this court. It seems the court ought, in every instance, to take judicial notice of such things as are revealed in its own records and not deny a cause consideration for the reason that the printed abstract omits to recite a fact which we know to be true from the record constantly before us. A rule of practice so highly technical would be most unjust, indeed. It has been expressly ruled by our Supreme Court, in cases where the appeal is prosecuted on the short form, that though the abstract omits to recite that an order granting the appeal was made, it would be sufficient if the transcript of such an order appeared on file in the court. [Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39; Booth v. St. L., I. M. & S R. Co., 217 Mo. 710, 117 S.W. 1094.] But it is said the Supreme Court in numerous cases has declared a rule of decision to the effect that it will not search through a long transcript in aid of a defective abstract. So much may be conceded, but the theory of the cases above cited is that the court will look to what appears in the judgment and order granting the appeal on the short form provided for by section 813, for the reason it is quite convenient to do so. In other words, those cases rule that as the short transcript is the basis of the court's jurisdiction "and is of easy access" it will resort thereto in aid of a defective abstract. [Coleman v. Roberts, 214 Mo. 634, 637, 114 S.W. 39; Booth v. St. L., I. M. & S. R. Co., 217 Mo. 710, 714, 715, 117 S.W. 1094.] In the case last cited, it is pointed out that the reason of the rule of decision under which the appellate courts decline to search through an extended transcript for what the abstract ought to show is that it unduly consumes the time of the court and that the same reason does not obtain when nothing more is to be examined than what appears in the short transcript. The principle announced in those cases is certainly just and should obtain here, for to ascertain the essential fact to the jurisdiction of the court, we are not required to search through the transcript but may discover the matter by viewing the file marks on its cover. And though the abstract omits to mention the fact of filing a complete transcript here, it is quite as "easy of access" by reference to the file mark itself on the transcript. The rules of appellate procedure are becoming so technical as to frequently sacrifice the justice of the cause to the form of procedure and we feel that the court ought not to contribute as much as a mite to that end. There is certainly a marked distinction in the cases as to looking through a long transcript and those which merely require inspecting, a short one disclosing no more than the judgment and order granting the appeal, or such as is the case here, when no more labor is entailed than is essential to ascertain...
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