*1 341 prejudice part, on cogent passion clear evidence jury actual and question was a determination as to the for the damages punitive plaintiff disgrace, assault, threats and men- due danger anxiety humiliation, jeopardy tal of criminal pain, prosecution. recovery large, "While the was rather a-mount of yet, considering determination of matter on motion for new prius trial judge, able nisi heard and the course who observed trial, and in present view of worth of and its less- purchasing ened power, say we are unable to the verdict was such as to shock the conscience of the court. except should be and is affirmed. All Walk- concur,
er, J., who dissents.
PEE having CURIAM: This case been Court en transferred to foregoing Banc Two, delivered Division C., Davis," is adopted concur, judges as the decision court. All of the except Walker, J., who dissents. John P. Gordon v. Francis Trimble
The State of Missouri ex rel. Judges City Appeals. Kansas Court of
et al., S. W. 475. Banc,
Court en December *2 (&Cook, Dumm D. W. and Paul Barnett for relator. Shackleford *3 Ira II. respondents. Lohman for proceeding Two). original is an (in Division BLAIR, J. —This Kansas opinion of the quash the whereby seeks to certiorari, Mission, Bank of National of First Appeals in case City Court pending lately Appellant, Gordon, John P. Texas, Respondent, v. judgment affirmed the respondents and wherein
before County. Court of Cole the Circuit respondents: gleaned from the following facts are The (hereafter referred Mission, Bank of Texas First National $3500, together promissory note “.bank”), upon a sued relator was made to attorney fees. defense No thereon and interest court The trial directed except by way counterclaim. note, $4,414.61 was verdict for against bank verdict for the con- petition. on its No accordingly of the bank returned favor far as in so respect to tbe tention of conflict is made in bank’s note. The contention con- affirmed on the *4 judgment on counter- grows flict of .the of the relator’s out affirmance claim. of note. He set
Relator’s answer admitted the execution upon alleged that, facts on or about Oc- a counterclaim based use, 7, 1920, request of the bank and for its tober and at the Texas, deposited Brownsville, in Bank the sum the First of National a within $9,889.70, promised of which to relator the bank time; applied deposit that drew and said reasonable the bank out given payments upon its own are note use. Six set out credits by leaving $5,743.49 relator to the of bank, Brownsville balance alleged to be such still due relator because of advancement. reply
The bank’s foregoing pleaded denied the transaction and dropped Texas of limitations. statute That statute seems to have or, opinion. out of at least, the case is not considered further The reply, by counterclaim, way also of answer to relator’s further alleged that organized the bank was under the laws of the United president States and that relator and the stockholder, was director of such bank, and, president, while such director and relator allowed .overdrafts, of violation permitted and and loans excessive the bank on thereby liable to States, laws the United and became was volun- any payment it if made account thereof. “And that he reimbursement, implied promise any or express and without tary, bank in said purpose protecting his stock and was made for the by charge Comptrol- being- prevent and from taken same was States; any payment Currency ler of the United understanding he was not voluntary and made with the distinct to be reimbursed therefor.”
By way counterclaim, the bank al- further answer to relator’s leged: “That never made claim under facts al- defendant suit; leged in his counterclaim until after the institution by, facts, knowing that he stood all the and afterwards sold a well large portion by plaintiff bank, of his stock in the and reason of ad- by directors, vancements made the bank sold at other he same accepted and and increased value received the benefits paid by protect other directors stockholders to the bank and prevent being closed; its thereby estopped he from setting up his counterclaim.” pur- shows that relator and his wife ninety
chased of the shares stock that relator there- president capital $25,000. became of the bank. Its stock Sprowl $32,000 One owed the presi- bank relator became when its dent. At one time thereafter this indebtedness had mounted to $75,000 $80'000. Sprowl The advancements made after rela- president tor became of the bank were made cashier and personally. When relator learned the situation in re- spect Sprowl account, meeting he called a of di- board direction, and, rectors under its watched the account until it was reduced approximately $18,000. collections to Relator then closed down on assignments the account and took Sprowl in his own name as trustee for the bank. July This occurred 30, 1920,
On October bank received <&visit from Thompson, one Thompson national bank examiner. Sprowl insisted that overdrafts be taken out of Thereupon the bank. the directors, each proportion him, the stock held executed their notes to the First National Bank Brownsville, Texas, up the to take overdraft, which was $18,000. then excess of Relator’s note was *5 accordingly $9,889.70. executed for appears
It given the by credits to the bank relator his counterclaim were in fact collections made from time to time on the Sprowl assignments pro credited rata the notes of the di- rectors. Relator testified in substance that he-and the other direc- put up- tors secured than to notes rather have the put up He his bank. said be close the bank examiner
national
directors
bank was
understanding that
with the
assignments
pay
failed to
notes the
on the
whatever balance
off.
support
to the evidence
a demurrer
trial court sustained
The
to-
accordingly,
judgment was entered
counterclaim, relator’s
$4,414.61, upon
in the sum
against
relator
gether with
judgment re-
From
petition.
this
bank’s
pleaded,
the note
City
Appeals. That court
appealed
Court of
Kansas
lator
rehearing
moving
unsuccessfully
a
for
judgment. After
affirmed
certiorari,
secured our writ of
court,
applied
in that
judg-
respondents,
affirming
ground
that the
upon the
of this court.
with certain decisions
conflicts
court,
ment of
trial
record
certifying
our writ
complied with
That court has
it.
before
N
opin-
that the
here,
contends
urged
other conflicts
Among
v.
Brewing Company
American
conflicts
ion
Appeals,
City Court
because “the Kansas
Louis,
lows by plaintiff prop- that the counterclaim was “It further insisted is erly jury, only consideration of the on the not withheld from voluntary payment, payment it but because ground that was purpose saving made for the Ms financial in- defendant good bank, and this constituted consideration for his terest action. voluntarily where stockholders
“The rule assess themselves pecuniary corporation embarrassment, from to relieve the or for the stock, debts, such advancements are not but betterment assets corporation. Brown, seq.; v. Fed. et Bid [Brodrick Ry. Co., 729; Banking & v. v. 6 Atl. Trust Co. Irwin, well 138 La. ” 335; Henry, First Bank v. 202 W. National S. 282.] by respondents undoubtedly support general The cases cited proposition .voluntarily that “where stockholders assessed them- corporation pecuniaiy embarrassment; selves to relieve' the or for the stock, debts, betterment of their are advancements corporation.” assets of the But does not every follow that embarr,assed payment of money financially corporation one *6 agree- any it without paid or all of is to its stockholders or directors pay- make repayment cannot for its a stockholder ment that agreement may an be recovered. ment such which under sustaining demur- By affirming the trial court the action of counterclaim, re- support rer to of relator’s the evidence offered in of an spondents evidence no sufficient effect held that there bank agreement money advanced repayment in the squarely and the To hold thus other directors. which shows by respondents’ opinion, face the record as shown put- money; I was “A. put up that relator testified: I to chose ting up money understanding this re- with the Q. pay Was anything assignments liquidate. us these failed to sir; Thomp- Mi*. No, entered on the board of director’s minutes? A. said, this; get out and any son it will ‘Don’t make record of ” your hurt bank.’ quote We also further: di-
“Defendant testified that when the bank examiner with the met rectors, way suggested examiner to handle the best Sprowl put money up matter was as for the directors to assignments given were realized the di- the credits could be on, proportion money rectors in each. The placed to the amount of witness was asked: “ ‘Q. In case of failure to realize to take sufficient $18,000 indebtedness, A. wdiat was to be Someone asked done? ‘‘ question him the you gentle- and he said: The bank can reimburse ’ men afterward.’’ objected
“This grounds statement was that a national bank agreement can no make such that, as but the court overruled objection.” stating
In testimony Bishop, respondents witness said: “The witness that he did testified not recollect definite ar- rangement among the directors as to what was be done toward re- imbursing them in the event the claims were not sufficient to meet the advancements made them, he understood that the event the derived from said claims was insufficient to re- imburse the directors for plaintiff their advancements the or its bank obligation shareholders owed him an to reimburse -him.” Even if payments of assessments stockholders and direc- corporation tors to a to relieve its financial embarrassment, without showing agreement of an contrary, to must regarded be corporation assets of debts, and not as it does not follow that payments may not be made under valid binding agreement they are to constitute corporation debts of the which should be repaid. applying this rule to the facts stated in holding that relator made no case for submission of his counterclaim Bishop testimony of relator ignored tbe jury, tbe clearly contravened repay and agreement tending’ to show *7 a demurrer bolding that, of this court numerous decisions the issues tendered in support of testimony offered evidence, the every reason together with true, as pleadings must be taken e This legitimately b drawn therefrom. may which able inference authority of citation general is and so well established rule Holman, v. Burton recent cases of see the scarcely justified, but is W. Sup.), 236 S. (Mo. Co. 70; Railroad 288 v. Wabash Burtch Mo. Shaner, Lindsay v. 425;W. (Mo. Sup.), 238 S. 338; Keppler v. Wells Co., 293 Mo. Explosives v. 297,
291 and Evans General Mo. opinion approving but rule, Respondents did discuss this not to the evi sustaining demurrer in of trial court the action in necessarily counterclaim support of relator’s dence in offered (Mo. Sup.), Boeving v. Cox ruling. ex rel. volved such State regarded as appeals will be 869, 276 that a court of S. W. we held rendered, judgment having question with the consistently decided its if the question opinion, decision or not whether it discussed the have been de question necessarily and must of such involved judgment conclusion consistently cided before the reached logical!}7 reasonably could be and reached.
Respondents of trial court could not affirmed action have sustaining bank’s demurrer to the on relator’s coun- evidence holding terclaim that relator was not have without fact entitled to testimony agreement his of an taken true and as that he every legitimately not entitled to the benefit of inference be drawn therefrom. specifically assigned
Even if opin relator has not this conflict ion, it duty is our clear its notice when comes to our existence ex attention. rel. Missouri G. & E. v. 307 Trimble, Co. Mo. l. [State 552; Ellison, 228; c. State ex rel. Shawhan v. 273 Mo. l. c. State ex Vulgamott rel. 300 l. v. Mo. Trimble, c. 101.] complaint Relator alleged they makes of several conflicts, other noticed, ruling need be respondents for reason that our sustaining contravened decisions of court in the trial court in giving a support demurrer the evidence offered in of relator’s judgment counterclaim makes the i’eversal of the trial court ;s only respondents which could properly render. It unnecessary to alleged consider other conflicts.
Because pointed out, the conflict above judg- and ment of quashed. should It be is so ordered. All concur. (in Banc)
PER CURIAM urged Court en :—It argu- brief ment that the divisional adopted should not be because, un- 1878, United States der 5200 and Bevised Statutes Sections per cent ten above loans permit who “directors of national banks liable personally person are capital surplus one to the bank for the loan.” person, any one Section limits the liabilities to capital cent of the company per firm to ten borrowed one of But, by unimpaired surplus bank. subdivision exchange bills of proviso section, found said discount of “the including drafts good values, against actually existing drawn in faith conveying or documents exchange, by shipping bills of secured . . shall not be considered securing goods title to . shipped, meaning within this section.” borrowed Sprowl account “was appears respondents’ opinion It that the which had attached, on there lading made drafts with bills *8 produce, of said Sprowl, shipper been advanced Mr. a and to dealer exempted by amount.” of class The the indebtedness proviso quoted. the bank was therefore of Section 5200 above The capital per not and limited as such indebtedness ten cent its to to unimpaired knowingly surplus permitting act of in relator if capital surplus, did per same exceed tén he cent 5200 knowingly do was not as made so, such violation Section personally Bevised 5239, liable under Section Statutes law, United may States 1878. as a Hence, it not be said matter of in view of statutes, such of the could sections Federal agreement not make the defense there was an between money by and the directors to relator and advanced other directors.
It urged opinion adopt- is further that the divisional should not be ed because liable, 5153, relator was under Section Bevised Statutes 1878, per United States $100 to an assessment of share be- voluntarily put cause relator testified up keep that he being Bespondents’ bank from opinion closed. discloses that re- lator agreement testified the same connection an understand- ing that the repaid. should be advanced liability
The banks, shareholders of national to the extent of par value of their stock, addition to the amount invested contracts, such shares, provided 515.1, Section is limited to engagements debts and banking liability such association. Such apparently does not become fixed as uncollectible debts due to banking association until such uncollectible debts impair capital the bank’s stock and.surplus satisfy that its will assets depositors its and other necessary creditors and becomes to call upon the good deficiency shareholders par to make up value of the shares held them. is nothing in any provisions
There of the Federal statutes relied upon by respondents right -whichdenies the of the shareholder agreement a valid and enforceable national bank make to take him to the bank money, advanced such bank that provisions Sec- exempted paper of sort
undesirable opinion respondents shows repaid. tion be The 5200, shall testimony agreement. sort of tending prove just that there duty to of such jury right pass upon the truth had the testimony. taking trial case from affirming the action of the court with, opinions of jury, conflicts
court, pointed opinion. out in divisional modification, adopted divisional as the
With this opinion of the Court Banc. en Friend, v. Minor, Lute B. Next Meade, Meade, L.
Clarence Supply Company, Appellant. Water & Steam Missouri S. W. 515. One, Division December