Thompson v. Main Street Bank

• Decision Date: 10 June 1929
• Docket Number: No. 16655.,16655.
• Citation: 42 S.W.2d 56
• Parties: CHARLES E. THOMPSON ET AL., RESPONDENTS, v. MAIN STREET BANK, APPELLANT.
• Court: Missouri Court of Appeals

42 S.W.2d 56

CHARLES E. THOMPSON ET AL., RESPONDENTS, v. MAIN STREET BANK, APPELLANT.

No. 16655.

Kansas City Court of Appeals. Missouri.

June 10, 1929.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris. Judge.

REVERSED AND REMANDED.

W.W. McCandles for respondent.

Harzfeld, Beach & Steeper and C.H. Haas for appellant.

BLAND, J.

This is a suit upon a check in the sum of $464, dated Kansas City, Missouri, June 13, 1923, signed by Charles Stone as maker, made payable to the order of plaintiff as payee and drawn upon the defendant bank (hereinafter called the bank).

It is claimed by plaintiff that defendant accepted the check and refused to pay the same and the bank is sued on its alleged contract of acceptance. There was a verdict and judgment in favor of plaintiff in the sum of $595.72. Defendant has appealed.

The facts show that plaintiff is an attorney; that he was employed by one Charles Stone to represent him in a criminal charge pending against Stone in Kansas City; that plaintiff "cleared" said Stone of the accusation; that plaintiff made a charge of $500 for his services in the matter; that thereafter on June 13, 1923, said Stone gave plaintiff the check above described, stating to plaintiff that the check covered all of the money the former had in the bank; that on the day the check was given, or the next day, Stone left Kansas City and went to California; that on June 19, 1923, plaintiff deposited the check in his bank but when it reached the defendant bank payment was refused.

The facts further show that on April 2, 1923. Stone deposited with the defendant the sum of $500 and that no check was drawn upon the account by Stone until June 11. However, on May 12, a check in the sum of $464 was presented to defendant having the name of Stone thereon as maker, but his name was forged to the check. On the last mentioned day defendant paid the forged check. Between that time and June 11, Stone came into the bank and attempted to withdraw the $500 he had on deposit but defendant refused to pay him on the ground that his account had been debited with the sum of $464 on May 12. Thereafter on June 11. Stone presented to the bank a check for $36 which was paid, leaving a balance to his credit in the bank of $464 which he had on deposit at the time he gave plaintiff the check in controversy.

When the bank refused to pay the check involved in this action plaintiff called upon it and presented the check personally. The vice-president of the bank obtained the forged check and showed it to plaintiff, admitted that it was a forgery and orally agreed to pay plaintiff's check. The vice-president said to plaintiff:

"`Of course, we have to pay, but,' he says, `we want to find out something about this ourselves, for that reason we want you to go to this address and present all the facts to them, and be whatever assistance you can to them to ferret this matter out.'"

Plaintiff then went to the address given him by the vice-president of the bank, which was the address of the bonding company with which the bank carried insurance, and there conferred with an agnt or agents of the bonding company. Plaintiff had several talks with the investigator for the bonding company in reference to the matter and did not again confer with defendant. He thereafter brought suit against the bank in a justice court. He testified the reason for the taking of this action was because:

"The bank told me they were going to pay me, and all the investigator did was just talk about Stone's brother. He thought he had forged his name. He thought his wife's sister knew how much he had in the bank, and a lot of stuff like that, and I got tired listening to it."

Plaintiff dismissed the action in the justice court and instituted the present suit in the circuit court. Before bringing the present action plaintiff received a letter from Charles Stone giving him permission to file suit against the defendant in the name of Stone so that plaintiff could collect the money on the check for plaintiff's benefit.

There was evidence on the part of defendant tending to show that the signature upon the forged check was somewhat unlike that of Stone's but similar enough from a banker's standpoint to justify the teller in cashing the check. However, we do not construe defendant's testimony as admitting that the check was not signed by Stone as maker. There was testimony on the part of the defendant tending to show that when the holder of the check came to the bank to get it cashed he was accompanied by Stone and that Stone received the money from defendant.

The petition alleges: "That on the 14th day of June, 1923, and for sometime prior thereto plaintiff, Charles Stone, had money deposited in the defendant's bank: that on the 12th day of June, 1923, he had the sum of four hundred sixty-four dollars ($464) deposited therein to his credit; that on said date he gave a check drawn to the order of Charles E. Thompson on said bank, that said check was given for valuable consideration to the said Charles E. Thompson; that the said Charles E. Thompson presented said check for payment within a reasonable time and the defendant accepted and agreed to pay same but later failed, neglected and refused to pay said sum, and although demand payment has been made upon the said defendant, it still refuses to honor and pay said sum of money on said check: that there is new due plaintiff the sum of four hundred sixty-four dollars ($464) with interest at the rate of six per cent per annum from June 13, 1923."

The answer consists of a general denial. The suit was originally instituted in the name of the present plaintiff and Charles Stone, but at the conclusion of the testimony the court indicated that he would require a dismissal as to one or the other of the plaintiffs and the cause was dismissed as to Stone.

Defendant insists that the court erred in overruling its demurrer to the evidence. In this connection it is contended that the demurrer should have been sustained:

(a) "Because there was a misjoinder of parties plaintiff.

(b) "The petition, even as amended, does not state a cause of action since it does not say that the defendant ever agreed in writing to pay the check sued on.

(c) "The evidence does not show the respondent presented said check for payment within a reasonable time."

Defendant is not in a position to insist that a demurrer to the evidence should have been sustained for the reason that no written demurrer was filed and defendant joined with plaintiff in offering and having the court give instructions upon the merits. [Berkshire v. Holcker, 216 S.W. 556, 560; Smith v. Greenstone, 208 S.W. 628, Felty v. Dunlap, 203 S.W. 651.]

The record shows that the attorney for the defendant at the close of the testimony stated to the court: "I offer ... a demurrer to the evidence at the close of the whole case." The court overruled the demurrer and defendant excepted. Under our practice a demurrer to the evidence consists of a peremptory instruction to the jury to find for a party. The statute (section 1417, R.S. 1919) provides that instructions to the jury shall be in writing. In treating of a demurrer to the evidence the Supreme Court stated in McClure v. Campbell, 148 Mo. 96, 112:

"Until the instructions are given there is no adverse ruling of the court which finally precludes a recovery by the plaintiff, for the court is required by section 2188, Revised Statutes 1889, to `give' or `refuse' the instructions in writing asked by the parties or may give instructions of its own motion. Until the court so acts there has been no ruling or action of the court, with respect to instructions." (Italics ours.) [See also Lewis v. Mining Co., 199 Mo. 463, 466, 467; Carter v. O'Neill, 102 Mo. 391, 393.] For all the record discloses the court may have overruled the demurrer to the evidence for the reason that it was not in writing.

However, it is contended that the court erred in giving plaintiff's instruction No. A which reads as follows:

"The court instructs the jury that if you find and believe from the evidence that on the 2nd day of April, 1923, Charles Stone deposited with the defendant bank the sum of $500 to his credit and that on the 13th day of June, 1923, the said Charles Stone had money on deposit in said bank in the sum of $464, and that on the 13th day of June, 1923, the said Charles Stone issued and delivered to the plaintiff. Charles E. Thompson, a check written in favor of said Charles E. Thompson, plaintiff, in the sum of $464 on the defendant bank, and that said check was given for a valuable consideration and that said Charles E. Thompson presented said check for payment within a reasonable time and that the defendant bank then and there accepted same and agreed to pay the plaintiff the amount of said check, then it will be your duty to find the issues in favor of the plaintiff and against the defendant."

We think there is no question but that this instruction is erroneous. It is true that the failure of the defendant to demur to the evidence admits that plaintiff made out a case under the petition. However, the statute (sections 819, 975, R.S. 1919) requires an acceptance by a drawee of a check to be in writing While the petition is broad enough to be construed as alleging an acceptance in writing, as it does not show upon its face that it was not in writing (Barndsall v. Waltemeyer, 142 Fed. 415), and therefore states a cause of action, the instruction fails to submit an acceptance in writing but is broad enough to permit the jury to find that there was an oral acceptance.

However, it is claimed by the plaintiff that the instruction not only had the jury find that the defendant accepted the check but that it agreed to pay plaintiff the amount of the check. An agreement to pay a check is of no greater force or effect than an acceptance of a check and the two must be construed to mean the same thing in this instance (Dickinson v....