Wind v. Bank of Maplewood & Trust Co., 22330.

• Decision Date: 07 March 1933
• Docket Number: No. 22330.,22330.
• Citation: 58 S.W.2d 332
• Parties: WIND v. BANK OF MAPLEWOOD & TRUST CO.
• Court: Missouri Court of Appeals

58 S.W.2d 332

WIND v. BANK OF MAPLEWOOD & TRUST CO.

No. 22330.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Rehearing Denied March 24, 1933.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Action by Elmer A. Wind against the Bank of Maplewood & Trust Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Rassieur, Long & Yawitz, of St. Louis, for appellant.

John E. Corvey, of Maplewood, for respondent.

BENNICK, Commissioner.

This is an action for damages for breach of contract. Elmer A. Wind is the plaintiff, and Bank of Maplewood & Trust Company the defendant. The action involves the breach by defendant of an alleged oral contract to repurchase from plaintiff four certain bonds sold by it to him. No point is made about the amount of the recovery, and it will suffice to say that plaintiff paid $2,543.75 for three of the bonds, and $511.50 for the fourth.

There were two separate transactions between the parties, the first on February 6, 1930, when three of the bonds were delivered, and the second on March 3, 1930, when plaintiff obtained the last bond. Consequently the petition was drawn in two counts, though the counts were identical, save as to dates and figures.

The petition set up that defendant agreed to sell, and plaintiff to purchase, the bonds at their face value with accrued interest; that defendant agreed as a condition of such transaction to repurchase the bonds at the sale price at any time plaintiff wanted his money back, or became dissatisfied with the bonds; that plaintiff relied upon such promise of defendant, and that the same induced him to purchase the bonds; that on or about November 1, 1930, plaintiff became dissatisfied with the bonds, and wanted the money so paid back for other purposes; that at said time plaintiff tendered the bonds back to defendant, and requested defendant to perform its part of the contract by the repurchase of the bonds at the sale price; that defendant refused to perform said condition; and that plaintiff, by his petition, made tender of the bonds, and was ready and willing to deliver them to defendant upon payment of the purchase price.

The answer was a general denial, coupled with a plea that the alleged oral agreement in question was within the statute of frauds, and therefore voidable.

Tried to a jury, a verdict was returned in favor of plaintiff on both counts of his petition for the full amount sued for, with interest; and, from the judgment rendered for plaintiff for $3,205.25, defendant has duly appealed.

It need scarcely be said that, in testing the sufficiency of the evidence to have supported plaintiff's recovery, we must accord him the most favorable view of the whole evidence, including the benefit of all favorable inferences legitimately deducible therefrom. Consequently, we shall state the facts with this in mind, and, in those few instances where there is a conflict in the testimony, we shall resolve the dispute in favor of plaintiff as the prevailing party.

Defendant, as its name implies, is a bank and trust company, duly organized under the laws of this state, and located in the city of Maplewood. Plaintiff is a depositor in the bank of sixteen years' standing, and a customer in its investment departments since 1927.

Prior to February 6, 1930, plaintiff had bought nothing but deeds of trust from the bank, his purchases of the same having aggregated some $10,000; and on the day in question he again went to the bank with a view to investing $3,000 which he had accumulated in his savings account, his idea being to buy additional deeds of trust. However, Mr. Medlen, the cashier, and also the manager of the bond department which the bank maintained, informed plaintiff that no deeds of trust were available, and suggested the purchase of certain bonds on hand which he explained were very similar to deeds of trust, being first mortgage real estate bonds of moderate denominations which could be converted into cash more readily than deeds of trust if plaintiff should desire his money for other purposes.

It seems that the bank had only $2,500 worth of the bonds in its possession at the time, and that Medlen promised to deliver a $500 bond later. When plaintiff inspected the bonds before making the purchase, he noticed that they were made to mature in 1940, whereupon he informed Medlen that he was unwilling to tie up his money for ten years. Medlen thereupon told him that the date of maturity made no difference, and that if he ever wanted his money back, or became dissatisfied with the bonds, the bank would buy them back at the purchase price. Plaintiff thereupon purchased the bonds, put them in his safe deposit box, and saw them afterwards only on those occasions when interest coupons were to be clipped.

When the first three bonds were delivered, Medlen, on behalf of the bank, handed plaintiff the following written document, variously referred to in the evidence as a bill of sale or a receipt:

                                "Statement
                              "Maplewood, Mo., Feb. 6, 1930
                "Elmer A. Wind, 7307 Gayola Place, Maplewood
                    Mo
                       "In Account With Bank of Maplewood
                    and Trust Company, Sutton and Manchester
                                     Avenues
                "Real Estate and Insurance
                "Loans and Investments
                "Safe Deposit Boxes            Phone, HIland 6700
                

"We Have Sold to You:

                     $2,500 Lake Shore Driv Bldg., First Mtge
                             6% Bonds, #M946-47-D1286
                          Due May 1, 1940 .......... $2,500.00
                Interest Nov. 1st, to date .........     43.75
                                                     _________
                                                     $2,543.75
                

                         "Bank of Maplewood & Trust Co
                  "Paid Feb. 6-1930
                  "Maplewood, Mo."
                

A similar paper accompanied the delivery of the $500 bond on March 3, 1930.

About November 1, 1930, plaintiff was informed by letter that the bonds were in default in the payment of interest, whereupon he got the bonds out of his safe deposit box, tendered them to the bank, and demanded his money back in accordance with the oral agreement to repurchase. What he tendered, of course, was the bonds themselves, less the interest coupons which had meanwhile been collected. Repurchase of the bonds was refused by the bank, and the present action has followed.

There was abundant evidence of the existence of the bond department as a department of the bank, with Medlen in charge of it, and of his purchase and sale of bonds on behalf of the bank. Medlen's own testimony was that "he didn't remember guaranteeing or promising outright to repurchase the bonds," but that "bonds were frequently repurchased from customers with the board's knowledge," and that "such bonds were repurchased on the basis of par assuming they were sold at par." Other evidence was that the board of directors at some of their meetings had discussions relative to the sale of securities, and that Medlen's purchases and sales of bonds would be read to them without objection.

Preliminary to the question of the propriety of the submission of the case to the jury, defendant assails the action of the court in permitting plaintiff, over its objections, to prove the statements of Medlen upon which the contract of repurchase is founded. Its position is that the two written documents, which it denominates bills of sale, constituted the written evidence of the transaction; that they recite no repurchase agreement; and that the introduction of the oral testimony in question was in contradiction of and at variance with such written instruments, and therefore violative of the rule which disallows the verbal contradiction of a written instrument. Further, defendant argues that the repurchase agreement, if such there was, was within the Statute of Frauds (Section 2968, R. S. 1929 (3 Mo. St. Ann. § 2968, p. 1853), and therefore, not having been in writing, evidence in proof of the same was inadmissible.

As we view the case, the rule excluding parol or extrinsic evidence to vary, contradict, or add to the terms of a written instrument, has no application to the instance under consideration. In reality there is no dispute between the parties about the rule of law to govern the situation. Briefly stated, the rule is that to the extent that a writing, regardless of its form, embodies the elements of a contract, it is contractual in its nature, and subject to the same rules as other contracts with regard to the admissibility of parol evidence to explain, add to, or contradict it; but where the writing is a mere acknowledgment, statement, or receipt, constituting a mere written admission of a transaction independently existing or consummated, it is to be clothed with no contractual force and effect, and is open to contradiction, variation, or addition by parol. Interurban Construction Co. v. Hayes, 191 Mo. 248, 89 S. W. 927; Eggimann v. Houck (Mo. App.) 240 S. W. 478; Bert v. Rhodes (Mo. App.) 258 S. W. 40; Raicher v. National Bank of Commerce, 216 Mo. App. 346, 268 S. W. 111; 22 C. J. 1135-1139.

Now there is nothing contractual about the two instruments in question in the sense that they recite any mutual obligations of the parties. They were simply prepared by the bank at the conclusion of the transaction as evidence of the sale of the particular bonds to plaintiff at the stated price, and they purport on their face to be nothing more than statements of plaintiff's account with the bank, which had been paid in full as indicated by the receipt at the bottom of each statement. Having been prepared by the bank with that purpose in view, it hardly lies in the bank's mouth to argue at this late date that the statements were contractual in their nature; and under all the circumstances we must hold that the introduction of the testimony complained of was not violative of the parol evidence rule. Mooney v. Williams, 15 Mo. 442; 22 C. J. 1143.

Nor does the repurchase agreement, conceding that it was for the sale of goods,...