196 F. 1 | 8th Cir. | 1912
The Arkansas Valley Trust Company, hereafter called the Trust Company, brought suit against Render to recover the sum of $4,648.59, with interest, as a balance due upon a promissory note dated July 8, 1908, for the sum of $10,000, payable to the Trust Company on demand, and give'n by the Arkansas Valley Coal Company, Limited, hereafter called the Coal Company, and indorsed by Render before delivery under such circumstances as to make him one of the makers of the note. Render, by his answer filed in the suit, admitted that he signed the name of the Arkansas Valley Coal Company, Limited, to the note, as president of the company, and that he indorsed the same individually. He further alleged that the note was given to the Trust Company to take up overdrafts claimed by the Trust Company to have been made by the Coal Company upon its account with the Trust Company; that prior to the transaction of ^ny business between the Trust Company and the Coal Company, about June, 1907, the Coal Company made and entered into a verbal agreement with the Trust Company, whereby the Coal Company agreed to deposit its funds with the Trust Company; that it was further agreed between the Coal Company, represented by its president, Render, and the Trust Company, represented by Gardner, its treasurer, that all drafts, checks, or orders drawn on the funds of the Coal Company in the hands of the Trust Company should be in a certain form, viz., that the check or order drawn on the Trust Company should be signed b,y the vice president of the Coal Company, and that there should be attached to the check a voucher or account setting forth the purpose or object for which the check was drawn, and such voucher or statement should be certified by the secretary of the Coal Company and countersigned by the treasurer of the same; that there should also be attached to said voucher or statement a receipt to be signed by the party in whose favor the check was made before the check was to be paid by the Trust Company; that the Trust Company, in violation of saidl agreement, paid numerous and divers checks and orders signed by the vice president of the Coal Company without the same having the voucher or statement of account above mentioned attached thereto, and without the same being certified by the secretary of the Coal Company and countersigned by the treasurer of the same; that said checks and orders, although drawn for sums of money not due and owing by the Coal Company, were paid to the amount of $39,331.12 by the Trust Company; that, by reason of
When the case was called for trial, the court ruled that, as the issues stood upon the pleadings, the burden of proof was upon the defendant, whereupon Render was sworn as a witness and testified in his own behalf substantially as follows:
“I live at, Lawton, Okl. I was a stockholder in and president of the Coal Company, which did business at Ft. Smith, Ark. In June, 1907, I made an arrangement with Mr. Gardner, treasurer of the Trust Company, whereby the Coal Company agreed to deposit its funds with the Trust Company, and the Trust Company agreed that it would pay the vouchers or checks of the Coal Company only when signed by Mr. Ilic-key, the vice president and general manager of the Coal Company, certified by Mr. Bedwell, secretary, and countersigned by Mr. Gardner. Mr. Gardner was also a stockholder in and treasurer of the Coal Company. Render produced and there was admitted in evidence exhibits numbered 1 to 129, being checks and orders drawn by the Coal Company in violation of the alleged agreement, and which had been paid by the Trust Company, amounting in all to $39,331.12. These checks were charged against the account of the Coal Company and became a part of the overdrafts for which the note was given. Render received statements from time to time of the amount of money drawn from the Trust Company by the Coal Company, but he did hot see the vouchers or checks upon which the funds of the Coal Company were paid out until September or October, 1909, over a year after the note was given. Many of the vouchers in evidence were signed only by K. G. Hickey, vice president, and none were signed according to the agreement testified to by Render. From December 21, 1907, including a balance in favor of the Coal Company on that day of $3,921.95, there was deposited with the Trust Company by the Coal Company clown to October 19, 1908, the sum of $187,771.57. Excluding the disputed vouchers, there was paid out for the Coal Company (luring tills time by the Trust Company the sum of $118,418.11. Including the disput ed vouchers there would be a credit to the Coal Company of 41 cents. If the disputed vouchers on the present record are not chargeable to the Coal Company, then there would be a balance of $89,331.53 to the credit of the Coal Company, which would more than offset the note.”
After the testimony had been introduced, both sides rested, and counsel for the Trust Company moved for a directed verdict in its favor, whereupon counsel for the Coal Company asked leave to introduce testimony for the purpose of showing that Gardner was not treasurer of the Coal Company when Render made the agreement with him in regard to the form of voucher or check which the Trust Company should pay; and further asked leave, if the court was of the opinion that the burden of proof was upon Render, to show that the money paid by the Trust Company on unauthorized checks was not paid for the use and benefit of the Coal Company that the case be reopened so that this fact could be shown. The court denied the motion of counsel for Render, granted the motion of counsel for the Trust Company, and directed a verdict in its favor in the sum of $5,140.66. To the denial by the court of the motion made by counsel for Render and the granting of the motion made by counsel for the Trust Company counsel for Render at the proper time duly excepted, and these rulings are the only errors assigned.
Render had the right to show in defense jí the suit against him that there was nothing due upon the note. For this purpose, he had the right to show the state of the account between the Coal Company and the Trust Company. He did show that the Trust Company had paid out on vouchers or checks which he claimed were unauthorized the sum of $39,331.12 of the moneys of the Coal Company. The question then is: Was there sufficient evidence introduced by Render to show that the Trust Company ought to be charged with this amount? The agreement testified to by Render as to the form of voucher or check, entered into between himself as president of the Coal Company and Gardner as treasurer of the Trust Company, must be admitted. That the vouchers introduced in evidence were not in accordance with the agreement must ■also be admitted. Before considering the effect of the agreement, however, we must consider the contention made by counsel for the Trust Company that the agreement was void for the reason that Gardner, who ’represented the Trust Company, was also a stockholder and officer of the Coal Company.
. We have carefully examined and considered the argument of counsel for the Trust Company, but we are not persuaded that their view of the case is the correct one.
judgment reversed, and new trial ordered.