220 S.W. 671 | Mo. Ct. App. | 1920
The sole question involved in this appeal is directed toward the action of the trial court in granting a new trial on a motion therefor filed by the defendant, the effect of which was to set aside the verdict found by the jury for the plaintiff. The reason given by the trial court for granting the new trial is as follows: "The court is satisfied from the evidence that plaintiff's father, Cat Walls, by and with the knowledge and consent of the plaintiff, took from George Mitschele a note of $2,000 in settlement of the debt for the sale of the mules, and that said note is still in the hands of the plaintiff or his agent; which act on the part of the plaintiff, or his agent, released the defendant from any further obligation for the debt, if any existed."
The facts of the case are that the plaintiff shipped fourteen mules to the St. Louis market in a car with some mules belonging to one George Mitschele. Before the mules were sold in St. Louis Mitschele purchased the mules from the plaintiff for the sum of $145 each, *326 making a total of $2,030, it being agreed that plaintiff would stand his proportionate part of the freight. When the mules were sold, the purchaser in St. Louis forwarded the money to the defendant, the Crocker State Bank, to the credit of Mitschele, who was and for a long time had been a customer of said bank. After selling the mules, the plaintiff and Mitschele came back to Crocker, and the evidence shows that they arrived at Crocker before the money was returned from St. Louis to the defendant bank. There is evidence from which the jury could find that both Mitschele and the plaintiff talked with the officers of defendant bank and notified them that out of the money which would be sent from St. Louis to their bank in the name of Mitschele, plaintiff was to be paid for the fourteen mules Mitschele had purchased. Mitschele, on finding that the money had not arrived, gave the plaintiff a check for $2,000 on The Crocker State Bank and agreed that as to the freight, they would adjust that later, the amount of the check being made for $30 less than the amount the mules sold for. The plaintiff took this check to his home bank at Iberia, deposited it, got credit, and when that check reached The Crocker State Bank payment was refused. On investigation it was found that Mitschele was overdrawn with defendant some $1800, and that when the money was returned for the mules which had been sold in St. Louis — those which Mitschele bought from plaintiff as well as the other mules which he owned and shipped in the same car. The Crocker State Bank charged Mitschele's account with about $1800 and gave him credit on his account for the balance.
The petition of plaintiff sets up the charges that The Crocker State Bank knew that Mitschele had purchased these mules from him and that this money was merely sent to The Crocker State Bank in Mitschele's name to be paid over to the plaintiff, the sale being for cash. Under these facts a bank cannot appropriate the fund to the depositor's debts. [Leonard v. Martin, 214 S.W. 968.] *327
In the answer filed by The Crocker State Bank, and upon which the case went to trial, there was a denial of these facts. After all the evidence was in, the defendant then interposed an answer to the effect that after the $2,000 check had been turned down by defendant bank, the plaintiff, acting through his father as his agent, took from Mitschele a note as payment of the indebtedness represented by the check, which act discharged the defendant from any obligation which it owed.
We agree with respondent that if there is any substantial testimony in the record to the effect that a note was taken and accepted by the plaintiff, or any authorized agent for him, from Mitschele, then this would raise a question of fact to be determined by the jury, the plaintiff and his witnesses testifying that there was no such arrangement made or note accepted. And we further agree that the reason given by the court (copy of which is set out) would be a sufficient ground to uphold the action of the trial court on the ground that the verdict of the jury was against the weight of the evidence on this defense and that its action should not be interfered with on appeal. We, however, disagree with the respondent as to there being any substantial testimony that any novation or arrangement was made between plaintiff or his agent and Mitschele which would of itself discharge the obligation of The Crocker State Bank to pay this $2,000 check to plaintiff. As stated before, this defense was entirely an afterthought, put in by an amended answer after the testimony was in, which, of course, would be proper if there was testimony introduced showing that there had been an arrangement made which would release the defendant and which was not known to it until it came out during the examination of witnesses. The trouble, however, in this regard is that there is no evidence, as we view it, sustaining such contention. The evidence does show that when this check was turned down the plaintiff, a young man, was at home sick in bed and unable to attend to any business; that the officers of defendant bank stated *328 to Mitschele that the way to handle the matter was for him to satisfy the plaintiff in this case by giving him a good bankable note for the $2,000. The cashier of the Bank of Iberia called up plaintiff's father, who lived in the same county, and explained the situation to him as to the check being turned down. The father testified that he did agree with Mitschele that if Mitschele would produce a good bankable note, acceptable to the Bank of Iberia, he would sign it with Mitschele and settle the trouble in this way. Mitschele told him of several men he could get on the note that would make it good. The evidence also shows that Mitschele and the father of plaintiff, who we will assume was acting with authority for the plaintiff, both testified that Mitschele failed to get the signatures of certain men that made the note bankable.
The plaintiff says that he did not authorize his father to take a note for this debt. Be that, however, as it may, the testimony of all of the parties who were dealing with this bankable note proposition is that no such note was made according to agreement. The only evidence on this phase of the case as to the delivery of the note is that of Mitschele, who says that he gave a note to plaintiff's father signed by some men, and further says that it was not an acceptable note. Plaintiff's father testified that Mitschele handed him a note signed, which was not an acceptable and bankable note, and plaintiff's father testified that he took the note and told Mitschele that he would hand it to Clark, the cashier of the Bank of Iberia; that when he went to the bank the cashier was not there and that he handed it to his wife, and from here on there is utter darkness concerning the whereabouts or character of it. The evidence utterly fails to uphold the allegation that a note had been accepted from Mitschele in lieu of the dishonored check for $2,000.
The instructions to the jury concerning the fact that the mules were to be sold for cash, the question of defendant's knowledge that plaintiff had an interest of $2,000 in the draft which was to be sent to St. Louis, *329 and other questions raised in the case were properly submitted. There is no substantial error in the trial of the cause for which the verdict of the jury should be set aside, and the record fails to disclose that the reason given by the court in setting aside the verdict should be upheld. It is, therefore, ordered that the case be reversed and remanded, with directions to the trial court to set aside the order granting a new trial, to reinstate the verdict and render a judgment for plaintiff.
Sturgis, P.J., and Bradley, J., concur.
