The Kearney Bank v. Froman

• Citation: 31 S.W. 769,129 Mo. 427
• Parties: The Kearney Bank, Appellant, v. Froman et al
• Decision Date: 25 June 1895
• Court: Missouri Supreme Court

31 S.W. 769

129 Mo. 427

The Kearney Bank, Appellant, v. Froman et al

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from Clay Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

Simrall & Trimble for appellant.

(1) The instruction number 14 given by the court of its own motion was clearly erroneous. Knowledge obtained privately by a director in a bank can not be imputed to the bank, unless it is shown to have been communicated to the bank. Johnston v. Shortridge, 93 Mo. 227; Hyde v. Larkin, 35 Mo.App. 365; Savings Ass'n v. Printing Co., 25 Mo.App. 642; Bank v. Schaumberg, 38 Mo. 228; Hayward v. Ins. Co., 52 Mo. 189. (2) The evidence of Sam Smith as to what Anderson had told him about James H Froman being security for Samuel C. Froman should have been excluded. It was no evidence of the knowledge of the bank. Johnston v. Shortridge, 93 Mo. 227; Hyde v Larkin, 35 Mo.App. 365; Manhatten Brass Co. v Co., 37 Mo.App. 145. (3) Instructions 1 and 2 prayed by plaintiff should have been given, as they present the true theory of the case.

Dougherty & Dougherty, Lincoln & Emerson, and Hardwicke & Hardwicke for respondent.

(1) The court will not reverse a case for error that does not materially affect the merits of the action. R. S. 1889, sec. 2308; Green v. St. Louis, 106 Mo. 574; Nave v. Adams, 107 Mo. 414; Reardon v. Carter, 119 Mo. 572. (2) A judgment will not be reversed because of the admission of improper testimony, when that fact is proven by other evidence. Lane v. Lane, 113 Mo. 504; State ex rel. v. Railroad, 113 Mo. 297; Julian v. Conklins, 85 Mo. 202; Bradford v. Pearson, 12 Mo. 71. (3) Where one instruction is erroneous, but all the instructions, taken together, present the case fairly to the jury, it is not sufficient grounds for reversing the judgment. Henshaw v. O'Bannon, 56 Mo. 289; Bradford v. Floyd, 80 Mo. 207; Cooper v. Johnson, 81 Mo. 483, and many other cases.

OPINION

Macfarlane, J.

Action against both defendants on two promissory notes, each of which was signed by S. C. Froman alone. Defendants were charged as partners doing business under the firm name of S. C. Froman. Two controlling issues were made by the pleadings: First, were defendants in fact partners; and, second, if not, did James H. Froman hold himself out to plaintiff as such partner.

Samuel C. Froman, a son of James H., was engaged in buying, selling and dealing in mules. The evidence tended to prove that James H. Froman had an interest in some of the mules bought and sold by his son and that he informed the officers of the bank that he was a partner. It appeared from the evidence that Samuel C. from time to time borrowed money from plaintiff bank. For the money so borrowed, in a number of instances, notes signed by both the defendants were given the bank. These notes were finally taken up and a new note for about $ 4,500 signed by both defendants was given in place of them. In dealing with the bank the notes were generally signed by S. C. Froman alone.

Samuel H. Smith a witness for defendant was permitted to testify, over the objection of plaintiff, that one Henry Anderson, a director of the bank, told him "that Froman was Sam's security for about $ 4,500 in their bank."

The court instructed the jury that "such statement by Anderson to Smith may be considered by the jury in so far as it bears on the question whether the bank had knowledge of the relation that James H. Froman sustained to Samuel C. Froman, as such knowledge, if any, on the part of the bank, may bear upon the question submitted in the fifth instruction whether the bank was led to believe in the manner stated in the fifth instruction that James H. Froman was a partner, and extended credit and took notes sued on upon the faith of such partnership."

The admission of this evidence and giving this instruction are the only errors assigned.

The evidence could have been offered for no other purpose than that of proving that plaintiff bank had knowledge that James H. Froman occupied the relation of surety to his son Samuel C. Froman on the notes jointly signed by them, and not that of partner.

It was not shown that the director, whose declaration was proved had any connection with the active business affairs of the bank whatever. In the circumstances the evidence was clearly inadmissible. The knowledge of a mere director, having no further authority than...