107 Mo. App. 426 | Mo. Ct. App. | 1904
This case was before us by appeal on a former occasion, as may be seen by reference to the 92 Mo. App. 326. The pleadings, evidence and instructions as reported in that case are much the same as in that now before us. The judgment in the former case, which was for defendant, was reversed and the cause remanded. That in this was for the plaintiff and defendant has appealed.
The defendant now insists that the instruction in the nature of a demurrer to the evidence requested by it should have been given instead of refused. Nothing is seen in the opinion reported in the case when here on the former appeal that in any way precludes us from entering into an examination of the propriety of the action of the court in denying the demurrer. It is true that in respect to a certain issue in the case it was stated that there was evidence adduced sufficient as to' that to go to the jury; but it is not to be understood by that, or any other remark made in the course of the opinion, that our right to now consider whether or not the evidence is sufficient to entitle plaintiff to a submission, is foreclosed. In that opinion it was inter alia said that where money is deposited in a bank to the credit of one person and the bank has notice that it is claimed by another, the bank is bound to hold the deposit a sufficient length of time to afford such other an opportunity to assert his claim; and if he has a reasonable time allowed him for that purpose and fails to do so, the bank may pay the deposit to the depositor without any liability to the adverse claimant. And in the same connection it was said that the plaintiff “had a reasonable length of time to have asserted its rights and no more; and this was a question for the jury under a proper instruction. ’ ’
The defendant now insists that the evidence measured by this standard discloses no liability on the part of the defendant and that therefore the court erred in its submission of the case to the jury. The general rule is, that what is a reasonable time is a mixed question of law and fact which, under proper instructions of the court, ought to be submitted to the jury. There are, however, two well-recognized exceptions to this: (1), where there are fixed and certain rules for its determination by the court; and (2), where the uncontro
Manifestly, the case in hand does not fall within either of the exceptions and therefore the reasonableness of the time in which the plaintiff might have taken the requisite legal steps to assert its claim to the deposit was a question that was properly submitted to the jury under the instructions.
II.
The defendant further complains of the action of the court in giving the plaintiff’s third instruction which told the jury that, “if you find from the evidence that the cattle shipped by Randall to the Globe Live Stock Commission Company were a part of the cattle owned by Edmisson and conveyed by him to plaintiff by the chattel mortgage read in evidence, then the payment by defendant to said Randall of the proceeds of said cattle, either with the consent or pursuant to the direction of said Globe Live Stock Commission Company, or of one Coffee, constitutes no defense to this action. ’ ’
This instruction purports to be complete within itself and to submit the whole case. It in effect excludes from the consideration of the jury the principal defenses pleaded by the answer of 'the defendant. If it had been qualified by the rule enunciated in the defendant’s third, it would have been well enough. It was repugnant in expression to those given for defendant and was calculated to mislead the jury to the injury of the defendant. . It is quite true that under the rule of practice at present in vogue in this State it is not neces
The instructions here do not meet the second requirement of the foregoing rule because of the misleading character of that of plaintiff previously quoted. If the jury found, as they were warranted by the evidence in doing, that the Randall cattle were covered by the mortgage from Edmisson to plaintiff, then, under plaintiff’s instruction, if it forbid, as it very well might have done, the proceeds of those cattle had been deposited in the defendant bank that then it was liable without reference to whether or not the plaintiff, after it became aware of the deposit, within a reasonable time thereafter took the requisite steps to assert its right to the proceeds so deposited. The contention that this instruction was calculated to mislead is so obviously well grounded as to require no argument to support it. The instruction should not have been given.
III.
The defendant’s further complaint is that the court erred in giving plaintiff’s fourth instruction which told the jury “that if you find from the evidence that it was agreed on October 20, 1899, by Mr. Plato for plaintiff and Mr. Yorhees, the general manager of the Globe Commission Company, that plaintiff should have time to malm investigation and' to bring suit, and that thereupon said Yorhees in the two telegrams sent to defendant by him warned and directed defendant to either hold or return the money in question pending such investigation, and that notwithstanding such notice and direction defendant, on November 1, 1899, paid
It is quite difficult to see how any agreement between the agent of plaintiff and that of the Globe Commission Company could in any way bind or affect Randall or the defendant, neither of whom was party to it. The law fixed the obligation of the defendant in respect to holding and paying the deposit and that obligation could not be altered by the agreement of the plaintiff and the Globe Commission Company. Notwithstanding this agreement, it was the duty of the defendant to hold the proceeds of the sale of the cattle a sufficient length of time, regard being had to all the attending facts and circumstances, to allow plaintiff a reasonable opportunity to take legal steps to enforce its claim thereto. Defendant was not required, as the instruction declared, to hold the proceeds until a reasonable time had elapsed to enable plaintiff to complete its investigation and to bring suit against defendant.
The agreement between plaintiff and the Globe Commission Company was not a factor to be taken into consideration in determining whether or not the defendant after receiving the request of Mr. Vorhees to hold or return the deposit of the proceeds, waited a reasonable time, regard being had to all the attending circumstances, for the plaintiff to take steps to assert its claim to the deposit, before it paid over the same to Randall, and for this reason, we think the instruction — number four — was erroneous. The agreement neither tended to prove nor disprove any issue in' the ease. It is cer
IV.
The plaintiff’s thirteenth instruction told the jury that if it found from the evidence that Edmisson had not delivered to plaintiff nineteen hundred head of cattle since November 22,1899, that it should find that the mortgage sued on in this action had not been paid or satisfied, but was still in force. It seems to be conceded that Edmisson delivered to Bryson, plaintiff’s agent, 1,710 head of cattle, and there was evidence that another agent of the plaintiff in the absence of Edmisson took possession of and drove away 400 head more which had been rounded up by Edmisson for delivery to plaintiff’s agent, Bryson. If these 400 head were in that way taken possession of by plaintiff’s agent, this would amount to a complete performance on the part of Edmisson of the contract of November 22, 1899. The plaintiff’s said instruction was unhappily worded and was calculated to mislead the jury. If the plaintiff received the number of cattle required' by the said agree
V.
As near as we can understand it, the mortgage admitted in evidence over the objection of the defendant was a copy of the original, and if so the action of the court in that regard was not erroneous. Howell v. Caryl, 50 Mo. App. l. c. 448.
VI.
The defendant contends further that the court committed error in admitting in evidence entries in the plaintiff’s books showing the number of cattle which had been received by plaintiff subsequent to the contract of November 22, 1899. It appears from the testimony of the witness Burnett, who was plaintiff’s bookkeeper, that the entries made by him in plaintiff’s books were taken from scale tickets; that the usual way of making the scale tickets was from the weighing of the cattle, and at the time of the weighing he was furnished with the scale tickets showing the sale and all the figures and then after making the entries in his scale book the scale tickets were turned over and delivered to the buyers of the cattle. In this way the entries in the scale book became original entries and were admissible in evidence under the rule announced in Wells v. Hobson, 91 Mo. App. l. c. 385-6; Nelson v. Nelson, 90 Mo. 460; Robinson v. Smith, 111 Mo. 205; 9 Am. and Eng. Ency. of Law (2 Ed.), 901. Bemaining authorities on this point in defendant’s brief.
VII.
The court refused to permit the defendant to prove by the witnesses Baird and Wilkinson that the cattle, from the sale of which the proceeds in'- dispute arose, were generally known, recognized and spoken of in the
VIII.
At the conclusion of the argument to the jury by plaintiff’s attorney, the defendant requested an instruction which advised the jury that, “when one person deposits money in bank to the credit of another the bank has no right to return it to the person who made the deposit without the consent of such other.” This was but an abstract declaration of law and as such was no doubt correct. ' It was perhaps sufficiently timely. Yore v. Transfer Co., 147 Mo. l. c. 687. It is the duty of a trial couih to further instruct the jury, if requested by defendant so to do, in any case where it is made necessary by the false argument of plaintiff’s counsel in his concluding address to the jury. The performance of this duty is sometimes required in order to secure a fair and impartial trial of a cause. An examination of the
IX.
A somewhat extended examination of the evidence has not persuaded us that there was no substantial evidence adduced which tended to show that the Bandall cattle had never been the property of Edmisson. Whether or not they belonged to Bandall or Edmisson was under the evidence an issue of fact for the determination of the jury and not the court.
The judgment must be reversed and cause remanded.