Union Sav. Ass'n v. Edwards

• Decision Date: 31 March 1871
• Citation: 47 Mo. 445
• Parties: THE UNION SAVINGS ASSOCIATION, Respondent, v. JOHN J. EDWARDS et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 445

THE UNION SAVINGS ASSOCIATION, Respondent,

v.JOHN J. EDWARDS et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Hudgens & Son, Peacock & Cornwell, and Cline, Jamison & Day, and Lackland, and S. Knox, for appellants.

I. The appellants insist that the court erred in admitting the testimony of Charles Bell against the sureties of Edwards. The imaginary conversation to which he referred took place several weeks after Edwards had been discharged by the plaintiff. (1 Greenl. Ev., § 187.)

II. The sureties were discharged from liability on the bond for the reason that the plaintiff required of Edwards the discharge of other duties than those of teller, by reason of which the risk of Edwards' sureties was greatly increased. (Morse on Banking, 207; Grant on Banks and Banking, 265-6; 11 Mo. 447; 21 Mo. 51.)

III. The by-laws, by which the duties of the officers of the bank were defined and prescribed, were clearly admissible in evidence.

IV. The custom of paying overdrafts had been so common as to prevent the plaintiff from recovery of Edwards' sureties for money paid in good faith on overdrafts.

V. The court erred in causing a venire to issue for a jury of bankers, merchants and manufacturers, against the objection of defendants.

T. T. Gantt, with whom were Bakewell & Farish, for respondent.

1. The court below was well warranted in ordering a special jury in this case. (Gen. Stat. 1865, ch. 146, p. 599, § 23.) 2. The testimony of Charles Bell was properly admitted against Edwards. If any other defendant wished the court to limit its application, he should have asked an instruction to that effect. 3. The record of the trial of the indictment against Edwards in the Criminal Court was properly excluded, being totally irrelevant. 4. The by-laws of the plaintiff were properly excluded. They do not attempt to define the duties of teller, and at best they are merely rules for the internal management of the affairs of the Union Savings Association; they constitute no contract between the bank and the external world. 5. The instructions given contain a correct exposition of the law applicable to this case. 6. The instructions refused were either inapplicable to the case at bar or contained erroneous declarations of law. 7. There was no refusal to permit the defendants to amend their answer. 8. There is no foundation in the record for the suggestion that the jurors were biased. 9. It was competent for the court to give the judgment shown by the record for the penalty of the bond and interest from the commencement of the action, restricting execution to the sum awarded by the jury and costs.WAGNER, Judge, delivered the opinion of the court.

The respondent brought its action against the appellants for a breach of an official bond. The case shows in substance that on the 30th of June, 1866, Edwards being appointed teller of the Union Savings Association executed a bond for the faithful performance of his duties in that capacity. The penalty of the bond was for $15,000, and was signed by him as principal and the other defendants as sureties. The bond recited that Edwards had been appointed teller of the institution, and would have duties to perform as such, and would receive into his possession and have under his control money, property and effects of the institution, and was conditioned that he should execute said duties with integrity and fidelity, and well and faithfully perform and fulfill the trust in him reposed, and account for and render over, upon request, all money and property that might come into his hands, so that no default, fraud or failure should happen or be occasioned by neglect or failure on his part to perform his duties as teller. Edwards continued to act as teller until March 6, 1867, when he was discharged. On the 25th of February, 1867, he paid to Brentano $17,352.14 of money belonging to the respondent in excess of all that Brentano was authorized to check for. He concealed this payment until the 27th day of February, 1867, when, being notified that the committee would count cash on that day, he endeavored to have the counting postponed, and failing in this, he acknowledged the use that he made of the money. Subsequently Brentano paid $3,000 of the amount, and the remainder is still wholly unpaid.

The answer set up by way of defense that Brentane was a good customer of the association; that overdrafts were habitually allowed to customers; that Edwards had authority to allow them; that he had been appointed secretary pro tem. of the association, and in this capacity had an enlarged discretion to allow overdrafts; that the payment by him to Brentano had been made in good faith, in pursuance of the authority vested in him, and in the regular course of business. To this defense there was a replication denying that overdrafts were allowed by the association, or that Edwards had any authority whatever to permit the same; denying that he had paid this money to Brentano in good faith, and setting up that it was in violation of express warning and prohibition as to Brentano. Jennings, one of the sureties, set up as an additional defense that he was induced to sign the bond as surety by fraudulent misrepresentations made to him by the plaintiff as to the nature of the risk he would run by so doing. A replication was also filed to this answer. The court ordered a special jury, and the verdict was for the plaintiff.

It is not our purpose to review the evidence or comment upon it, as the jury were the exclusive judges to determine its weight and value. It may be said, however, that the evidence shows most conclusively that Edwards, in paying the overdrafts to Brentano, acted in the capacity of teller, and in that capacity only. An objection is raised that the court erred in impaneling a special jury to try the case. But the statute expressly provides that all courts of record in which juries are required shall have the power to order a special jury for the trial of any civil cause, and, when ordered, the sheriff shall summon them according to the order of the court. (1 Wagn. Stat. 800, § 23.) The special panel may be ordered in the discretion of the court, and there is nothing disclosed here tending to show that the discretion was unwisely exercised. The mere objection is not sufficient; there must be something to show that the party was prejudiced or injured by the action of the court.

It is also assigned for error that the court improperly admitted the evidence of one Bell against the objections and exceptions of defendants. Bell testified that he met Edwards in the last part of March, and wished to see if he could or would secure the bank against his defalcations. Edwards said he thought he could. Witness asked him how he came to get into this trouble. He said it was through speculation; that he and Brentano had been speculating in gold and stocks. On cross-examination he testified that Edwards said he...