167 Mo. 406 | Mo. | 1902
Action for damages to plaintiff’s business and credit consequent on the refusal of defendant bank to pay certain checks drawn by plaintiff on it, notwithstanding plaintiff alleged he had funds in the bank subject thereto; five counts make up the petition.
Each count alleged plaintiff was a trader, his business being the buying of stock in Morgan and other counties, and he was a customer of defendant bank.
That in October, 1897, he drew a check upon said bank, which was duly presented and payment thereof refused by defendant and the check protested; that he had funds in the bank at the time subject to said check, and that the non-payment thereof resulted in serious damage to his business and credit, and that he was compelled to sacrifice his property to meet the demands of his creditors, in consequence thereof.
Each count alleged the non-payment of a separate check, which is fully described by the name of the payee, the date
The special defense relied upon in the answer is, in substance, that plaintiff made an arrangement in August, 1897, with the defendant to advance him money upon his checks to enable him to buy hogs suitable for the market; that the proceeds of the hogs, when sold by plaintiff, were to be deposited with the defendant to meet the overdraft thus created; that on or about September 23, 1897, his overdraft exceeded one thousand dollars, which was more than the bank was willing to carry, and its officers did not want the indebtedness to appear in that form, so they asked him to make a note for a part of the amount, and he gave his note for seven hundred and fifty dollars, due in thirty days, with 'William Callison, who was engaged as plaintiff’s agent in selling the hogs, as surety thereon; that at the time the note was given, plaintiff had on hand a number of hogs, which he had bought with the money advanced by the bank; that plaintiff expressly directed the officers of the bank to credit on said note the proceeds of said hogs as the same should thereafter be deposited, from time to time, in said bank, notwithstanding the note might not be due at the time of such deposits; that the plaintiff sold the hogs and deposited the money in the bank, and, in accordance with his directions, the bank applied the same as a credit upon said note, and that when the checks were presented there was no money on hand subject thereto; that they were not paid for that reason.
The evidence tended to show that plaintiff had been trading in stock, and about August 1, 1897, applied to' the president of the Bank of Versailles for money to enable him to buy merchantable hogs. He at that time deposited $107. This seems to be the only money belonging to plaintiff, not arising from the proceeds of the hogs, ever deposited by him. It was agreed that the bank would advance money from time to time on his cheeks to enable him to purchase hogs suitable for the
The defendant introduced evidence to tbe effect that, at tbe time tbe note was given, plaintiff expressly directed tbe cashier of tbe bank to apply tbe deposits that might be made from time to time, as tbe bogs'should be sold, as a credit on tbe note, notwithstanding it might not be due when tbe sales were made, and that be repeated these directions to tbe president of tbe bank, when tbe latter directed him to close up tbe business about October 4, 1897. Both the president and tbe cashier testified that this was tbe understanding and arrangement with tbe plaintiff, and tbe testimony of Mr. Oallison corroborated their view of tbe matter.
On bis part, plaintiff denied that be gave any such directions, or bad any such agreement with tbe officers of the bank.
And it was testified by Dr. Woods, president of the bank, that on or about tbe fourth of October, plaintiff was at the bank and told Dr. Woods that be, plaintiff, had departed from tbe contract, by taking part of tbe bogs bought,- and instead, as per contract, of turning them over to Oallison, bad taken them to Cooper county and sold them there, and that they were not such hogs as tbe president bad agreed plaintiff
There was evidence upon one part, that plaintiff’s credit was injured by the protest of his checks, and that he made some sacrifice of his property, which he attributed to the action of defendant in refusing payment of such checks; and, upon the other hand, there was evidence that the only credit plaintiff ever had grew out of the fact that the bank was furnishing him the money to trade upon, and further that he sustained no loss by the selling of his personal property and the trading of his land for other property, as testified by him.
The court, at the instance of plaintiff, gave these instructions :
“The court instructs the jury that if they find for the plaintiff, in estimating the damages he has sustained by reason of the refusal of the .defendant to pay his checks, they should give the plaintiff such temperate damages as they believe from the evidence would be a reasonable compensation for the injury he must have sustained by reason of the refusal of the defendants to pay plaintiff’s checks; not to exceed, however, the sum of five thousand dollars on each count in plaintiff’s petition.
“The court instructs the jury, that they are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses, and in determining the weight that should be given to the testimony of any witness in this case, they may take into consideration his interest in the result of this suit as well as his manner and ’deportment while giving his testimony.
“The court instructs the jury, that the defendant had no right to apply the deposit of the plaintiff to the payment of the note of plaintiff held by defendant, unless after the note was made and executed and before payment of the checks of plaintiff was refused by the defendant, there was an express agreement made and entered into between plaintiff and defendant, whereby it was agreed that the defendant should so*419 apply such deposit; and the burden is on the defendant to prove such agreement by a preponderance of the evidence, and unless it has so shown to the satisfaction of the jury, they should find for the plaintiff on each count of his petition, and assess his damages on each count at a sum not exceeding five thousand dollars.”
These were all the instructions plaintiff asked, and to their giving, defendant excepted.
On its part, defendant bank asked and the court, over plaintiff’s exceptions, gave these instructions:
“You are instructed, that if you believe and find from the evidence in this case, that the plaintiff executed and delivered to the defendant his promissory note for $750, dated September 23, 1897, and that the same was to meet a part of the overdraft previously made by the plaintiff, and that plaintiff instructed the cashier of the defendant at the time of the giving of said note, or immediately thereafter, to credit his said note with any money deposited in said bank to his credit, whether said note was due or not; and that afterwards and before the maturity of said note, the defendant did receive money from the 'plaintiff which was credited on said note, and that plaintiff had no other money in defendant bank at the time of the protest of said checks, then your verdict must be for the defendant.
“The court instructs the jury that although they may believe and find from the evidence that plaintiff had money on deposit in defendant bank at the time defendant caused said checks to be protested, yet if you further find from the evidence that plaintiff did not sustain any actual damages in his business as a stock trader and that he did not suffer loss of credit by reason of such refusal of defendant to pay his said checks, then your verdict can not be for more than nominal damages, but if payment of the check was wrongfully refused, then you should find your verdict for the plaintiff for nominal damages even though no actual damages have been proven.”
“We, tbe jury, find tbe issues for tbe defendant on each of tbe five counts in tbe petition.”
Judgment entered of record in accordance with verdict of jury, and within proper time plaintiff filed bis motion for new trial, as follows:
“Now comes tbe above plaintiff and moves tbe court to set aside tbe verdict and judgment in tbe above entitled cause rendered on tbe twenty-seventh day of April, 1898, and grant a new trial herein for tbe following reason:
“Eirst, because said verdict is against the law, against the evidence, and against tbe law and tbe evidence.
“Second, because tbe court erred in admitting illegal and incompetent evidence on bebalf of tbe defendant and over tbe objections of the plaintiff.
“Third, because tbe court refused to admit legal and proper evidence offered by tbe plaintiff.
“Fourth, because the court erred in giving illegal and improper instructions on bebalf of tbe defendant and over tbe objections of tbe plaintiff.
“Fifth, because the court erred in refusing legal and proper instructions asked by tbe plaintiff.
“Sixth, because tbe verdict is against the weight of tbe evidence.
“Seventh, because tbe court erred in refusing to- give a peremptory instruction at tbe close of tbe case directing a verdict for tbe plaintiff.”
The court granted tbe motion for new trial, but did not specify of record tbe ground or grounds on which its action was bottomed, as the statute expressly requires. [R. S. 1899, sec. 801.]
1. As the trial court failed to specify the basis of its action, it would be highly improper for tbis court to assume that its action in granting tbe motion was based on any par
2. Relative to the first point, there were a number of objections taken by plaintiff regarding ruling on evidence, which will now be examined.
a. Plaintiff was asked as to the extent of the injury done him in his business by the refusal of the bank to honor his checks. On objection of defendant, this question was denied, but immediately thereafter, the same thread of thought and inquiry was pursued to its fullest extent, despite defendant’s objections. The exclusion of evidence at one time coupled with its subsequent admission, can not constitute ground for complaint that prejudicial error has occurred. [Reardon v. Railroad, 114 Mo. loc. cit. 402; Hollmann v. Lange, 143 Mo. loc. cit. 107-8.]
A doctrine contrary to this was declared by this court in State v. Grate, 68 Mo. 22. But that case can not stand with the cases heretofore cited, and it should not be followed.
b. Cross-examining Lobban, defendant endeavored to ascertain what was the source of plaintiff’s credit in doing business, so these questions were asked, and these answers returned :
“Q. Did you understand from any other source, any other way- — did you' get your information from any one that the credit he had in the stock business was on account of the Bank of Versailles furnishing money — funds to trade in stock with? A. I might have heard it indirectly, but I don’t know.
“Q. Do you know now? A. No, sir.
*422 “Q. And Ms credit in that community was based upon that fact — that the Bank of Versailles was furnishing him money ? A. It might have had something to do with it,' I don’t know.”
In reference to this matter, plaintiff says:
“Certainly it was an improper question. How he acquired his credit was not an issue.”
In answering ’this criticism of plaintiff, respecting the court’s admitting the witness to answer, as above stated, there are several answers.
First, the objection to the question was:
“I object to the question as incompetent, irrevelant and immaterial.” Of such an objection, this court has said, for over fifty years, that it is “no objection at all ” and only equivalent, as Judge Ryland said on one occasion, to saying, “I object
From the numerous objections of this sort which appear in our records at every term of this court, it would seem that no amount of catapvUtic force would be sufficient to convey to the minds of practitioners the absolute and indispensable necessity of specific objections to the admission of improper evidence.
Second, there was no exception saved to either question or answer. So that, even if the objection to the question had been well taken, it would have availed naught, because no exception was taken upon the overruling of the objection.
Third, the answer of the witness showed a wholesale ignorance of the subject of inquiry, and, therefore, neither question nor answer could have worked plaintiff any hurt.
Fourth, each question and answer was hearsay pure and simple.
Fifth, what the witness “understood” was not evidence. [State v. Gritzner, 134 Mo. loc. cit. 525, and cas. cit.; State v. Hagan, 164 Mo. l. c. 672.]
e. Arnholt testified that he was surety for plaintiff on
“Did Dr. Eeaster say anything to Mr. Eoe about his checks being protested, when the matter was fixed up ?”
Defendant’s objection to this question prevailed, and properly prevailed. If the conversation of Dr. Eeaster and plaintiff were admissible in this case, then hearsay always is original and legitimate evidence.
d. Eelative to the ruling of the court in rejecting, when offered by plaintiff in evidence, the motion filed by defendant to rule plaintiff to security for costs, the declared object of so offering the motion being to show plaintiff was insolvent. On objection by defendant, this motion was held inadmissible. In their brief, plaintiff’s counsel assert that this motion was admissible on the theory that it was an admission by defendant that plaintiff was insolvent. True, but insolvent, when? Clearly at the time of suit brought, and not otherwise.
The gravamen of plaintiff’s suit was the loss of credit plaintiff sustained, and the serious damage to his business, consequent on defendant’s refusal to honor his checks, he having at the time funds in defendant bank on which he drew. Consequently, the subsequent insolvency of plaintiff bore no relevancy to the issue joined. Besides, plaintiff was permitted to show his financial condition after the protest of his checks, and so no possible injury accrued to him, even if the trial court errpd in ruling out the motion for costs, which ruling we hold was not error.
e. It was entirely competent to prove by parol' through the cashier, Stephens, that plaintiff had been “doing business” with the bank, prior to August 1, 1897. No resort to defendant’s books was necessary for that purpose.
The evidence was admissible on similar grounds to the instance where you may prove by parol, a person was acting as an officer, though you could not, by patrol, prove he was an officer.
“The president of a business corporation is its chief executive officer. He may, without any special authority from the board of directors, perform all acts of an ordinary nature, which, by usage or necessity, are incident to his office, and may bind the corporation by contracts in matters arising in the usual course of business (Boone on Corp., sec. 144; Stokes v. Pottery Co., 46 N. J. L. 237).”
But apart from direct aiithority, owing to, and arising from, official position, it does not lie in plaintiff’s mouth, after having borrowed the money from the bank, through the president, now to deny the authority of the president either to loan the money to him or to dictate the terms of such loan. If the plaintiff’s position be correct, that the president had no authority to loan the bank’s money, then it inevitably follows that plaintiff never got the money from the bank at all, and consequently, had no money in the bank to draw on} and therefore had no ground of action against the bank for not honoring his checks. In other words, plaintiff’s position on this point, if successful, would cause the bottom to drop out of his cause of action. Not only is plaintiff estopped from pleading the president’s lack of power in .this regard, but the bank itself, having let the plaintiff have its money, through the assumed agency of its president (if it was assumed) is also estopped to deny the legitimate nature of the loan. And in the absence of countervailing evidence, inasmuch as the bank’s books show the loan was made, it will be presumed that the nature and character and all the essential features of the
And, on another ground, even if the act of the president were wholly unauthorized, that act can be upheld, and that is on the basis of ratification, which is as effectual against a corporation as against an individual in like circumstances, and tantamount to prior authorization. [Bank v. Fricke, 75 Mo. 178, and cas. cit.; Bank v. Gay, 63 Mo. 33.]
g. If Dr. Woods, the president, either in point of law, as being the executive officer of the bank, or through custom, or usage, or in consequence of ratification was, or became, authorized to make the contract with plaintiff about the hogs and the terms on which plaintiff could get the money, it was entirely competent to permit Dr. Woods to state what kind of hogs under the terms of the contract, plaintiff was to buy, as a condition of getting credit at the bank.
h. Error did not occur in admitting in evidence the entry from the journal, showing that $267.71 had been paid on the note for $750. The witness, Stephens, had already, without objection, testified to that fact. A payment can always be shown by parol, even though a receipt be given for such payment. But plaintiff objected to the journal entry showing payment on the ground that the note was the best evidence. The note, however, is not before us, and as it is not contained in defendant’s abstract, though it appears it was identified by the wdtness, so it can not be ascertained whether there was a credit on the note or not. If plaintiff had desired to supply the omission in defendant’s abstract, and make the note and its lack of a credit prominent, he should have complied with our rule 11 by filing an additional ab
i. The testimony of Dr. Eeaster as to plaintiff not being a good trader and to his not having as good credit as other men had, was received without objection by plaintiff, but it was moved by him to be stricken out. Under the ruling in State v. Marcks, 140 Mo. loc. cit. 668, unless testimony is admitted over a party’s objection, it is too late, afterwards, to move its exclusion. But whether the trial court erred or not, in this-ruling, is foreclosed from consideration by reason of the fact that no exceptions were saved thereto.
j. As to the deposition of Callison, offered by defendant in evidence, to this plaintiff objected and the objection was overruled; but as exception was not saved to this overruling, the point is not open for review.
And besides, as plaintiff states, “Callison did not testify to anything material to the issues in the case” there was, in any event, no occurrence of prejudicial error.
k. As to whether Dr. Eeaster offered plaintiff to buy his claim against the bank was wholly immaterial and foreign to the issues joined, and so the objection to asking plaintiff in regard to Dr. Eeaster making him such an offer was well taken, and so the court ruled. It is said by plaintiff that “Dr. Eeaster had denied that he ever tried to buy plaintiff’s claim against the bank, and the purpose was, to impeach his-testimony on this point.” But such testimony, being on a collateral issue, on an impertinent matter’, could not be offered for the purpose of impeachment. [Iron Mountain Bank v. Murdock, 62 Mo. loc. cit. 75, and cas. cit.] Besides, there was no exception saved to this ruling.
1. It was entirely discretionary with the trial court whether Stephens, after the evidence was closed, should be permitted again to occupy the witness stand. [State v. Smith, 80 Mo. 516; Jackson v. Railroad, 118 Mo. 199; Collins v. Lumber Co., 128 Mo. 451; State v. Eisenhour, 132 Mo. 140.]
These observations are also sufficient to cover and combat objection to Dr. Woods’ testimony. It was not necessary, for reasons already given, that such an agreement should be in writing. And no exception was noted to the latter ruling, and the court did not pass on the former objection, as to which Brown v. Bowen has been cited.
Having thus discussed the court’s rulings as to the admission or rejection of evidence, we hold no reversible error occurred as to such admission or rejection.
3. We now pass to the consideration of the instructions. If the remarks hereinbefore made are correct as to the admissibility of evidence regarding a parol agreement executed contemporaneously with the execution of the note, then the instruction on this point, given at defendant’s instance, was right; and that given for plaintiff,, which asserts that defendant had no right to apply the deposits, unless after the note was executed, there was an éxpress agreement between the parties that the deposits might be applied before maturity of the note, was wrong.
These instructions evidently can not stand together. Under the ruling in Bluedorn v. Railroad, 108 Mo. 439, if plaintiff’s instructions are correct in every point and particular, and he recover in the court below, and the defendant’s instructions arc given, though incorrect, and he appeals, this will
In other words, a party in fault is in better condition than a party free from fault, and so long as the former can continue to stuff the record with error, so long he may continue to baffle the administration of the law and defiantly defeat the ends of justice.
But this preposterous ruling was not of long duration. It was smitten irhip and thigh” and overthrown in Baker v. Railroad, 122 Mo. 533. Similar rulings were also made in Christian v. Insurance Co., 143 Mo. loc. cit. 468, and State v. Cable, 117 Mo. loc. cit. 386. Under these later rulings, if plaintiff’s instruction which necessitated the making of an express agreement about the use of deposits after the note was executed, was wrong, then this gives plaintiff no basis for an affirmance of the judgment, notwithstanding such instruction was in conflict with those given for defendant.
What already has been ruled in reference to the validity of a parol agreement made contemporaneously with the execution of the note, settles the correctness of defendant’s instruction on this point, in its favor.
4. The parol agreement between Dr. Woods and plaintiff for the use of the deposits as fast as they came in, being valid, there can be no doubt as to the right of the cashier to obey plaintiff’s directions in this regard.
Plaintiff had the undoubted right to give directions as to how his deposits should be applied, and these directions being given, under a previously made agreement and the deposits applied as directed, plaintiff is clearly estopped fx-om taking
Finding no error in admitting or excluding evidence and no prejudicial error in giving instructions, of which plaintiff can complain, we reverse the judgment and remand the cause with directions to the lower court to enter judgment on the verdict.