The Peoples Bank v. Stewart
| Decision Date | 03 January 1911 |
| Parties | THE PEOPLES BANK, Appellant, v. PETER W. STEWART, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Dade Circuit Court.--Hon. B. G. Thurman, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Neale & Newman and McPherson & Hilpirt for appellant.
(1) The court admitted evidence tending to show that after the giving of orders sued on and after the payment by plaintiff of the checks drawn by the partnership of Roley & Co. on account of said orders, that Roley & Co. made deposits in the plaintiff bank in amounts greater than the moneys paid out by plaintiff on Roley & Co.'s checks. This testimony was received by the learned trial judge and at the close of all the testimony he refused to strike out this testimony on the theory that if such deposits were made plaintiff was bound to appropriate the deposits of Roley & Co., if any were made to the payment of itself for having cashed the said checks. This was error. Bank v. Booze, 75 Mo.App. 189; Bank v Carson, 32 Mo. 191; Bank v. Peck, 127 Mass 298; Camp v. Bank, 44 Fla. 497; Bank v Hill, 76 Ind. 223; Bank v. Elliott, 9 Kan. 797, 59 P. 1102; Bank v. Evans, 9 W.Va. 373; Vass v. Bank, 83 Ill. 599; Houston v. Braden, 37 S.W. 467; Bank v. Smith, 66 N.Y. 271; Glazier v. Douglas, 32 Conn. 393; Flourney v. Bank, 79 Ga. 810. (2) There was no evidence introduced tending to show the plaintiff did confiscate any of the deposits of Roley & Co., and this instruction should have been given. Bank v. Carson, 32 Mo. 191; Bank v. Peck, 127 Mass. 298; Bank v. Hill, 76 Ind. 223; Bank v. Smith, 66 N.Y. 271. (3) The court erred in refusing plaintiff's instructions Nos. 8, 9, 10, and 11. Newton Grain Co. v. Pierce, 106 Mo.App. 200; Gill v. Reed, 55 Mo.App. 246; Nelson Mfg. Co. v. Shreve, 94 Mo.App. 518; Globe Printing Co. v. Bickley, 73 Mo.App. 499; Pearsell Mfg. Co. v. Jeffrays, 183 Mo. 386; Rottman v. Pohlman, 28 Mo.App. 399; Kansas City Sewer Pipe Co. v. Smith, 36 Mo.App. 608; Brant on Suretyship and Guaranty, sec. 56; Baldwin v. Heirs, 73 Ga. 739; Cruse v. Estes & Foster, 76 Ga. 723; Mackey v. Smith, 28 P. 974.
McNatt & McNatt for respondent.
(1) There was no unconditional acceptance of the contract as shown by all the evidence in the case, and before there can be a recovery on an order as this one, there must be an unconditional acceptance, and the parties must understand and consent to the same thing in the same sense. James & Son v. Fruit Jar Co., 69 Mo.App. 207; Brunner v. Wheaton, 46 Mo. 363; Shockley v. Fisher, 75 Mo. 498; Denton v. McGinnis, 85 Mo.App. 542; Robonson v. Railroad, 75 Mo. 498. (2) The petition alleged that defendant had knowledge of the acceptance of the orders and the amount of money paid out on same, which was necessary to prove before a recovery can be had yet there is no evidence in the record of such facts. Banm v. Golstein, 86 Mo.App. 516; Deering Co. v. Susler, 78 Mo. 670; Taylor v. Shouse, 73 Mo. 361; Bank v. Shine, 48 Mo. 456; Smith v. Anthony, 5 Mo. 504; Deere Plow Co. v. McCullah, 102 Mo.App. 458; Peninsular Stove Co. v. Adams, 93 Mo.App. 237; Bank v. Golberg, 15 L.R.A. (N. S.) 1115; Rowell Mfg. Co. v. Isaacs, 128 S.W. 760; Barnes Cycle Co. v. Reed, 84 F. Rep. 603; Taussig v. Reid, 145 Ill. 488; Rankin v. Childs, 9 Mo. 674; Nelson Mfg. Co. v. Shreve, 94 Mo.App. 518. (3) The obligation of the defendant was collateral and notice of acceptance was necessary, as well as notice of the amount of money paid to Roley & Co. Musick v. Musick, 7 Mo. 495; Graig v. Seybt, 91 Mo.App. 242; King v. Greeves, 51 Mo.App. 534. (4) The plaintiff by its pleadings regarded the obligation of the defendant under the alleged orders as collateral to the debt of Roley & Co., and the instructions should follow the allegations of the petition, which was done by those given in this case. Flint-Walling Mfg. Co. v. Ball, 43 Mo.App. 504; Raysdon v. Trumbo, 52 Mo. 35; Caffary v. Coal & Mining Co., 95 Mo.App. 174; Wright v. Fonda & Higgins, 44 Mo.App. 634; Moore v. Rose, 130 Mo.App. 668.
On the 5th day of December, 1910, an opinion was filed herein reversing the judgment and remanding the cause for a new trial. The appellant filed a motion to modify the opinion, and the respondent motions for rehearing and to transfer to the Supreme Court. The motions for rehearing and to transfer have been overruled. The motion to modify has been sustained, and the original opinion is withdrawn and the following filed in lieu thereof.
This suit originated in the circuit court of Lawrence county, and on a trial in that county a judgment was rendered in favor of the defendant. The plaintiff appealed, and the judgment was reversed by the St. Louis Court of Appeals. [136 Mo.App. 24, 117 S.W. 99.]
When the cause was remanded, an amended petition and answer were filed, thereby changing the issues in the case so that the former opinion throws but little light on the present controversy. Before the cause was retried, the plaintiff applied for and obtained a change of venue and the cause was sent to the Dade county circuit court, and there tried, before a jury, resulting in another judgment in favor of the defendant, and the plaintiff appealed.
The plaintiff, at the times hereinafter mentioned, was a banking corporation in Aurora, Lawrence county, and the defendant was the owner of a tract of land, upon which a partnership known as Roley & Company was mining for lead and zinc ores. The arrangement between the defendant and the partnership was, that the latter should conduct the mining operations, pay all the expenses, and when the ore was cleaned and ready for market, it was to be sold in the name of the defendant, who was to receive the pay therefor. The company was entitled to a certain per cent of the proceeds of the ore in payment for mining the same and preparing it for market. When the ore check was given to the defendant, he deducted the amount due him as the owner of the land, and wrote a check payable to the company for the amount due it.
About the time Roley & Company got the mine in shape to operate, its funds were exhausted and the defendant went to the plaintiff and borrowed one thousand dollars and deposited it to the account of Roley & Company, so the company could meet expenses and finish the mining plant, and be able to begin operations.
The testimony shows that it was customary to pay the laborers in the mine on Saturday, but the ore produced during the week was not sold and delivered so that a settlement could be made until the first of the week, and sometimes the ore was not sold weekly, and further delays in receiving pay for the ore were caused thereby. The company was without funds in the bank to meet its weekly payrolls, and applied to the plaintiff bank for credit, and asked the bank to permit it to overdraw its account by writing checks on the bank in excess of the funds on deposit. The bank refused the credit, for the reason it did not deem the copartnership good for the money advanced.
The plaintiff claims that shortly after its refusal to extend credit to the company, the defendant called at the bank and an agreement was entered into by which the bank agreed if the defendant would send orders to cash the checks of the copartnership. In a short time an order was presented to the bank, the plaintiff claims, reading as follows: It is the contention of plaintiff that the order was accepted, and that the copartnership was permitted to overdraw its account; that soon after another order was presented, and this practice continued from some time in 1905, until the 14th day of July, 1906.
Roley & Company deposited in the bank until January 6, 1906, sufficient funds to square its account so that no liability accrued on the orders of the defendant given prior to that time. Previous to January 6, 1906, when an order was presented, the bank put it in the cash drawer and honored the checks of the copartnership, regardless whether it had any funds on deposit to meet them. And when the copartnership received a check for ore, the same was deposited to the copartnership account and was sufficient not only to take up all outstanding checks, but to show a balance in favor of the copartnership. When the order of January 6th was presented, the cashier of the plaintiff requested the copartnership to give a demand note for the amount the proposed checks would overdraw the account. The evidence shows that the bank remained open Saturday evenings after the usual closing hour, but the Saturday evening's business was transacted as a part of the business of the following Monday. When the business of Monday was finished and it was ascertained the amount the copartnership had overdrawn its account, a demand note was given for the amount.
The plaintiff claims that on January 6th, January 27th, March 13th and July 14th, 1906, on orders of the defendant, it paid to the copartnership nine hundred and forty dollars.
The petition is in four counts, but as the counts are the same except as to dates and amounts, it will not be necessary to refer to more than one of them. The first count, after alleging the organization of the plaintiff and that Roley & Company was a mining partnership, states: "On or about the 6th day of January, 1906, the defendant, by his written order of that date, duly executed by him and delivered to the plaintiff, ordered and requested the plaintiff to then and there cash checks of Roley & Company in such sum as the said Roley & Company might draw on plaintiff; that on or about the said date, the said Roley & Company drew checks upon the plaintiff bank in the sum of three hundred dollars, and the...
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