Van Buren County Savings Bank v. Mills

• Decision Date: 17 February 1903
• Citation: 72 S.W. 497,99 Mo.App. 65
• Parties: VAN BUREN COUNTY SAVINGS BANK, Appellant, v. J. H. MILLS, Respondent
• Court: Missouri Court of Appeals

72 S.W. 497

99 Mo.App. 65

VAN BUREN COUNTY SAVINGS BANK, Appellant, v. J. H. MILLS, Respondent

Court of Appeals of Missouri, St. Louis

February 17, 1903

Appeal from Knox Circuit Court.--Hon. Edwin R. McKee, Judge.

AFFIRMED.

Judgment affirmed.

W. T Rutherford for appellant.

The law is well settled in this State, that the appellate court will reverse the judgment of a trial court based upon the verdict of a jury which is manifestly the result of prejudice or passion. Bertram v. Railway, 154 Mo. 639. We submit that the verdict of the jury in this case is the result of passion and prejudice and is certainly against the weight of the evidence in the cause. Defendant went to trial in the justice's court upon a plea of payment, and plaintiff recovered judgment against him, from which he appealed. His plea of payment was a solemn fact and was, or should have been, in accordance with the truth and facts in the case, and was certainly pleaded advisedly, and a good defense if true.

Berkheimer & Dawson for respondent.

Where there is sufficient evidence to go to the jury, and proper instructions are given, their finding is conclusive. Culbertson v. Hill, 87 Mo. 553; Bank v Armstrong, 92 Mo. 265; State v. Young, 119 Mo 495; Lawson v. Mills, 130 Mo. 170; Dean v. Fire Association, 65 Mo.App. 209. The determination of a motion for a new trial, on the weight of the evidence, rests in the discretion of the trial court. Lawson v. Mills, 130 Mo. 170; Bemis Bros. Bag Co. v. Ryan Co., 74 Mo.App. 627. We think, under the law and the evidence in this case the judgment founded upon the verdict of the jury should be affirmed, as the only ground for a new trial urged in this case is that the verdict of the jury is contrary to the evidence.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

--This action was instituted before a justice of the peace on a promissory note executed by the defendant to the plaintiff October 25, 1897, for one hundred dollars, due sixty days after date.

Defendant filed an answer in the justice's court which, in addition to a general denial, contained the following special defense:

"Defendant further says that he admits the execution of the note sued on, but says that said note, with other notes, were given to the said bank by this defendant for the purpose of checking against them and to secure checks drawn by this defendant on said bank. That this defendant did draw checks on said bank at divers times against said notes as such deposit, but defendant says that at the time and at divers other times he remitted and paid to said bank the full amount of the checks so drawn on said bank by this defendant. But defendant charges and avers that said plaintiff wrongfully and fraudulently refused to credit said note and said other notes with the amounts so remitted by this defendant as aforesaid. Wherefore defendant says that said notes are fully paid off and discharged and asks to be discharged with costs."

The testimony of Mills, which was corroborated by certain circumstances, was that he was in the cattle business and frequently had occasion, when purchasing stock, to draw checks on the plaintiff, the Van Buren Savings Bank, and that in view of checks which he might draw, he gave the note in suit to the bank so that the amount of it might be credited to his account in the bank, against which he could then check without overdrawing. He testified further that he received no credit for the note in suit on his account with said bank, but that he afterwards paid to the bank the full amount of all the checks he drew on it.

On the other hand, the testimony of the cashier of the bank and of other witnesses is that Mills was paid the proceeds of the note in cash at the...