Peoples Bank v. Stewart , 160 Mo. App. 643 ( 1912 )

GRAY, J. —

A history of this suit and the understanding of its facts and issues may he found in the opinion of this court on a former appeal, and .reported in the 152 Mo. App. 314, 133 S. W. 70. When the case was rémanded, an amended answer was filed, but otherwise the pleadings were the same as in the former appeal. The amended answer admitted the execution of the order described in the fourth count of the petition, but denied, under oath, the execution of the orders described in the other counts. The answer further alleged: “Defendant says and avers that the orders alleged to have been executed by the defendant, and upon which the plaintiff alleges it advanced money to the said Roley & Company, only requested the plaintiff to permit the said Roley & Company to overdraw and check at the plaintiff’s hank for a particular week to meet the pay roll of the said Roley & Company, and that defendant only offered to guarantee the repayment of said overdraft, etc.”

It is the contention of the plaintiff that this answer admitted that the orders were in the form described in plaintiff’s petition. This part of the answer was the same as the answer in the former appeal, and we did not, in reviewing the case, give the answer this construction. It seems to us that it is plain the defendant was denying that he executed the orders described, but that any orders he did give, were only offers of guaranty that required notice of'the acceptance and failure of Roley & Company to pay.

The appellant makes the further claim that there was no evidence offered at the last trial to authorize the court to submit- to the jury the issue as to whether the orders were in the form described in the petition. The record 'shows that when the plaintiff’s president was on the stand, he was cross-examined regarding his former testimony in the case, as follows: “Q. I will ask you if this question wasn’t, asked you by Mr. Me Pherson, ‘ Q. Tell the jury the substance of this writing? A. Well, I don’t know as I could repeat it word for word, but it was an order such as an ordinary farmer or man of that kind would write, to let Roley & Company — that he would guarantee Roley & Co.’s pay roll, or something to that effect. ’ That was your testimony? A. Yes, sir. Q. Was it correct? A. In the main. Q. In substance did you not tell the jury what the order was? A. Well, I don’t remember exactly word for word; I said similar to that. ’ ’

It thus appears that the witness at this trial stated that his testimony at the former trial, as to the form of the orders, was correct in the main. It is true the other officers of the plaintiff at the trial, from which this appeal was taken, testified that the orders were in the form alleged in the petition, but their testimony was weakened on cross-examination by showing- that at a previous trial they had testified that the orders were held as collateral security for the debt of Roley & Company.

On the former appeal we held that the testimony of the president was sufficient to carry the case to the jury on defendant’s claim as to the form of the orders, and as the president at this last trial testified that his former testimony was correct in the main, it follows that the issue was again one for the jury.

The appellant assigns as error the action of the court in admitting evidence of deposits made at different times by Roley & Company in the plaintiff bank, and that the bank took demand notes of Roley & Company for the amount it had paid out in cashing the checks for that partnership. We held this testimony competent on the former appeal, and, therefore, the court committed no error in admitting it.

Complaint is,made of the action of the court in giving defendant’s instruction No. 11. The complaint against the instruction is, that by it the court told the jury that defendant was only liable for what he intended to do, and not what he actually did. The instruction reads: “Even though you may believe and find from the evidence that the defendant signed orders at the times mentioned in the first, second and third counts of the petition, yet if you further believe that by the terms and language of said orders the defendant only agreed and intended to guarantee the payment of the debt of Eoley So Company, etc. ’ ’ There was no occasion for using the word “intended” in the instruction, but in as much as the instruction required the jury to find that by the terms and language of the order the defendant agreed to guarantee the account, the additional requirement that defendant also intended to guarantee the payment of the order was surplusage and harmless.

At this last trial the jury returned a verdict in favor of the plaintiff on the fourth count of the petition, but found for the defendant' on the other counts. This was the third trial of the issues before a jury, and each time the verdict on these three counts has been for the defendant. We have carefully examined the record and it shows that the trial court, with one exception, carefully followed the law as declared in our opinion. The exception relates to the forms of the orders. In the opinion we said: “The.court should inform the jury by proper instructions relating' to the contention of the parties as to the form of the other orders, and should also inform the jury as to the legal effect of the orders in case they should be found to have been in certain language.” This was not done, but the jury were told if they found the defendant only agreed to guarantee the payment of the debt of Eoley So Company, then they were not the orders described in the plaintiff’s petition.

We do not believe, however, that the plaintiff is in a position to complain of this error, as the same error is found in its instruction. [Peters v. Gillie Mfg. Co. 133 Mo. App. 412, 113 S. W. 706; Masterson v. Transit Co., 204 Mo. 507, 103 S. W. 48; Clippard v. Transit Co., 202 Mo. 432, 101 S. W. 44.]

The judgment will be affirmed.

All concur.