Thomas v. Bank of Springfield, 12065

• Decision Date: 05 March 1982
• Docket Number: No. 12065,12065
• Citation: 631 S.W.2d 346
• Parties: William L. THOMAS, Plaintiff-Respondent, v. BANK OF SPRINGFIELD, Defendant-Third Party Plaintiff-Appellant, v. Tim NEWTON, Third-Party Defendant.
• Court: Missouri Court of Appeals

Page 346

631 S.W.2d 346

29 A.L.R.4th 217

William L. THOMAS, Plaintiff-Respondent, v. BANK OF SPRINGFIELD, Defendant-Third Party Plaintiff-Appellant, v. Tim NEWTON, Third-Party Defendant.

No. 12065.

Missouri Court of Appeals, Southern District, Division One.

March 5, 1982.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 23, 1982.

Bruce McCurry, Dickey, Allemann & McCurry, Springfield, for plaintiff-respondent.

Harold F. Glass, Schroff, Glass & Newberry, P. C., Springfield, for defendant-third party plaintiff-appellant.

TITUS, Judge.

Plaintiff sued defendant bank for $3,724. This represented the amount of a check plaintiff had written on his account with the defendant bank and which the bank paid after it had received plaintiff's verbal stop payment order. The bank answered and filed its third party petition, apparently per § 400.4-407, ¹ against the payee of the check to recover any damages which might be assessed against the bank on plaintiff's petition. A Greene County jury returned verdicts for plaintiff on his petition against the defendant bank in the sum of $3,724 and for the bank on its third-party petition against the check payee in the sum of $3,724. The court entered judgment upon the verdicts, after determining the interest to be added to the money awarded by the jury, and only defendant bank appealed.

Near 12:00 A.M. January 9, 1978, plaintiff gave Tim Newton his $3,724 check drawn on plaintiff's account with the Bank of Springfield. The check was dated January 9, 1978. Plaintiff did not write the name of the payee on the check but, apparently with his assent, this was supplied via a rubber stamp imprint reading "Newton Super Market," the name of the business Newton operated in Ash Grove. After delivering the check to Newton, plaintiff had misgivings concerning his action and determined to stop payment thereon. At either 7 A.M. or 8 A.M. January 9, 1978, plaintiff telephoned the Bank of Springfield, talked with a female employee and orally ordered that payment be stopped on the check. Plaintiff recounted the bank employee asked that plaintiff "stop in and sign a card" to that effect when he "was in the vicinity" of the bank. On the same day, i.e., January 9, 1978, the bank wrote a notice to plaintiff that his bank account had been debited in the sum of $3.00 for "Stop pay charges."

Soon after the bank was opened to the public at 9 A.M., January 9, 1978, Newton appeared, presented plaintiff's check and was given a $3,724 cashier's check therefor. Near 10:30 A.M. on either January 9 or 10, 1978, he could not remember which, plaintiff went to the bank as requested to sign a written stop payment card. This became unnecessary when it was discovered the bank had already cashed the check and paid the proceeds to Newton.

Plaintiff's Evidence

Plaintiff testified he had once been in the "heating and air conditioning business" but was not so engaged on Sunday, January 8, 1978, when he received a telephone call from Tim Newton (third party defendant) asking him to service the refrigeration units at Newton Super Market in Ash Grove. Plaintiff and James Young drove to the market Sunday "evening." Shortly after their arrival, Newton and Young departed leaving plaintiff alone at the store. After being at the market some 45 minutes, plaintiff recounted he went to the residence of Gilbert Binkley near Bois D'Arc to change a blower assembly on a heating unit. This task consumed two hours and, plaintiff said, was completed at 10 or 10:30 p. m. Upon departing the Binkley home, plaintiff testified he drove to the house of Aaron Wilkerson four miles west of Ash Grove. Finding no one home, plaintiff drove to Tim Newton's residence in Ash Grove arriving "around Sunday at midnight." Plaintiff acknowledged he had not charged for services or parts in connection with work performed at the market or the Binkley home because their units were still "under warranty."

Tim Newton's residence consisted of a house and detached garage, the latter being divided into a parking area and a "game room." Plaintiff recalled upon arrival at the Newton garage he was met by Newton at the garage door and, consequently, did not go into the game room which he saw was occupied by James Young and two men. Newton, according to plaintiff, asked for a $3,724 loan "to make a transaction," with assurances he would repay the loan "the following day." Plaintiff acceded by giving Newton the previously described check. On the check presented by plaintiff at trial was written "Per loan" in the space intended to indicate its purpose. Plaintiff said this was an abbreviation for "personal loan." When asked why "Per loan" was written in ink of a color differing from the rest of the check, plaintiff said that "possibly my pen give out" and he used another "or it come to me that that should be on the check and I put it on there later." However, the photocopy and microfilm of the check made by the bank did not have "Per loan" written on it.

Plaintiff acknowledged signing the bank's "Depositor's Contract and Signature Card" but denied having ever read the "Depositor's Contract" appearing in diminutive print on the back of the card. Inter alia, the contract provided that no stop payment order was valid unless made in writing and that the depositor agreed to hold the bank harmless on account of payment made contrary to the order if it occurred through "inadvertence, accident or oversight." Plaintiff was adamant in his denials that the check had been given to Newton in payment of plaintiff's gambling losses on the night of January 8, 1978, and that although Newton had never repaid the "loan," he had not sued Newton to recover the "loan" and did not consider Newton liable "for the goof-ups that this bank has made."

A vice-president of the bank, who was also the bank's cashier and custodian of its records, appeared as a witness for plaintiff. He verified the bank's records showed a bank employee at the main branch facility where plaintiff's check was cashed, received at 8 a. m. January 9, 1978, a stop payment order on the check in question and that plaintiff's account was charged $3 for the service. The witness acknowledged that bank employees are not instructed to refuse telephone stop payment orders and, in fact, it's "done every day." When asked if "there are many occasions when checks are stopped pursuant to oral ... stop payment orders," the vice-president answered, "Certainly." The witness' explanation as to why the check had been cashed after the bank had received the stop payment order, was that the stop payment information did not get on the bank's microfiche records for 24 hours and would not be accessible to bank tellers when checking the microfiche viewer until that time.

Defendant's Evidence

Gilbert and Elda Binkley, husband and wife, lived two miles north of Bois D'Arc and it was their home at which plaintiff testified he stayed two hours while changing a blower assembly on their heating unit on January 8, 1978. Mr. and Mrs. Binkley testified plaintiff had installed a heating and air conditioning system in their newly constructed house in 1972, but denied plaintiff had ever been in their home after 1972, especially in January 1978.

Third Party Defendant's Evidence

Third party defendant, Tim Newton, testified plaintiff had not been in his store on Sunday, January 8, 1978, to repair refrigeration units or otherwise, but rather was at his Ash Grove garage in the game room from "somewhere between 7:00 or 8:00 o'clock Sunday evening" until "around midnight" playing poker. According to Newton, when the game broke up, plaintiff owed Newton and another gambler together $3,724 and plaintiff paid his gambling debt in that amount by delivering the check in question. Newton confirmed he cashed the check at defendant's bank "shortly after 9:00" a. m. on January 9, 1978, and received defendant's cashier's check in like amount. Newton flatly denied the check had been given him by plaintiff as any sort of a loan.

Plaintiff's Rebuttal Evidence

Plaintiff's lone rebuttal witness, James Young, testified he and plaintiff went to Newton Super Market on January 8, 1978. After plaintiff conferred briefly with Newton, Young and Newton went to the latter's house leaving plaintiff at the store. Young said plaintiff did not appear at Newton's house until midnight. Any further intended testimony by Young was halted by the court, as defendant and Newton objected, because plaintiff, in answering interrogatories, had not given his opponents Young's complete address although such was shown to have been known by plaintiff.

Three of the bank's points relied on herein are predicated on assertions "the trial court erred in failing to direct a verdict for defendant" for the following reasons: (1) "because plaintiff's testimony that third-party defendant Newton owed plaintiff no money amounted to a judicial admission that plaintiff had not suffered any damage and, thus, plaintiff did not make a submissible case;" (2) "because the evidence clearly showed that the check was delivered by plaintiff to third-party defendant for payment of a gambling debt and, therefore, plaintiff's only basis for recovery would have been under V.A.M.S. § 434.030 and § 434.090 and there was no compliance with the statutes;" and (3) "because (A) the uncontradicted evidence showed that no written stop-payment order was delivered to the defendant as required by the Depositor's Contract and Signature Card; and (B) The evidence did not support a finding that defendant failed to exercise ordinary care in paying the check."

Point (1), supra, has this background. Upon cross-examination, plaintiff acknowledged his loan to Newton had not been repaid and the reason he had not sued Newton on the loan was that "the way I feel" Newton did not owe him any money because of the "goof-ups that this bank has made.... That's why I feel the way I feel." Accepting for the moment plaintiff's entire...