Donijanovic v. Hartman , 169 Mo. App. 204 ( 1912 )

REYNOLDS, P. J.

Plaintiff brought this action before a justice of the peace to recover $200. In the petition filed with the justice it is stated that on the 14th of April, 1907, defendant was engaged in the banking business and as such received from plaintiff on deposit $300, agreeing with plaintiff to return it to him on demand; that plaintiff had received $100 on the 28th of April, 1907, and had afterwards demanded of defendant the return of the balance but defendant had failed and neglected and refused to pay the same. Judgment was prayed for the $200 and interest from the date of demand.

Defendant filed an answer before the justice which was, first, a general denial, then a counterclaim for $39.40 claimed to be due by plaintiff to defendant.

Apparently, although the abstract of the record does not set this out, plaintiff recovered before the justice, and defendant appealed to the circuit court. There, on a trial before the court and a jury, a verdict was returned in favor of plaintiff for the $200, and for defendant for the $39.40', judgment being rendered in favor of plaintiff for the difference. Filing a motion for new trial and excepting to its being overruled, defendant has perfected his appeal to this court.

It appears from the evidence in the case that defendant was carrying on a kind of private banking business, not as a licensed banker, but for the accommodation of his customers, his regular business being that of a butcher and grocer. Plaintiff deposited $300' with him on the date specified in the petition or statement and received a passbook or bank book from defendant, on which was printed or written in Croatian that defendant was a banker and also carried on steamship and railroad ticket exchange, and that every one depositing money or drawing money from defendant must bring this book when he wanted to do either. There was testimony on behalf of plaintiff tending to show that a few days after he had made the deposit of $300, he had withdrawn $.100, that amount being entered in this book, and that this was all he had ever drawn from defendant, plaintiff testifying that not having occasion for the other $200, he made no demand for it until some two years after the deposit, when some trouble appears to have occurred between him and defendant as to the payment of a store account and for rent; that he had then demanded the $200, and that defendant denied that he owed it. There was also testimony of another witness, to the effect that defendant denied owing plaintiff anything. It was admitted at the trial that plaintiff did owe defendant an account for groceries and rent, these items being the $30.40' set up by way of counterclaim. It was not pretended that plaintiff had either shown the bank book to defendant or made demand at his store or shop. The testimony of defendant and of a witness he produced was to the effect that defendant had in fact paid plaintiff the $200 a short time after its deposit and had entered the fact in a book he, defendant, kept, but which he testified he had since lost. In brief, there was a direct conflict between the stories of plaintiff and defendant as to the payment of the money, so that the case was clearly for the determination of a jury, depending for its solution upon the credit given the witnesses.

Complaint is made before us that no legal demand had been proven in this case, and that there was no evidence that the bank book had been presented when the demand for withdrawal had been made, it being claimed that presentation of the book was a part of the contract between plaintiff and defendant. Landis v. Saxton, 105 Mo. 486, 1. c. 491, 16 S. W. 912, is cited in support of this. We do not find anything in that case which sustains this proposition; on the contrary, it is there said quoting from a New Hampshire case, that “where an obligation to pay is complete, a cause of action at once arises and no demand is necessary.” Over and above this, production of the book as a prerequisite to a right of withdrawal and of action is out of this case. Defendant pleaded and attempted to prove payment— stood on that defense. Presentation of the bank book, under such facts, would have been useless, and the law never requires the doing of a useless thing. Defendant tried his case in the circuit court on the theory that he had paid the-money. He cannot now and for the first time raise the question of lack of demand.

Complaint is made of the instruction which the court gave at the instance of plaintiff as to the burthen of proof. That instruction, in substance, told the jury that the burthen of proving payment is upon defendant and that unless the jury believed from the evidence in the case that defendant had established that issue by a preponderance of the evidence, that is the greater weight of the evidence, their verdict as to that issue should be in favor of plaintiff. Counsel rely in support of the assigned error in giving the instruction on Lucks v. Northwestern Savings Bank, 148 Mo. App. 376, 128 S. W. 19. Comparison of the instruction there condemned, which will be found at page 382, with the instruction given in the case at bar and above set out, shows that they are entirely different. The instruction in the Lucks case was condemned by this court because it singled out certain facts in the case and directed particular attention to them. Nothing of that kind appears in the instruction under consideration.

Error is assigned to the action of the court in allowing a witness to testify concerning an alleged conversation which he had with defendant, in which conversation defendant stated, as testified to by the witness, that plaintiff never did have any money on deposit with • him. The complaint lodged against the admission of this evidence is that it did not definitely fix the time at which the conversation was had. Examining that evidence, we do not think this objection is tenable. The witness was questioned about when the conversation took place and gave the time as definitely as he could, we think sufficiently so to make the evidence admissible.

It is complained that the court erred in striking out the testimony of defendant that he owned the business or premises he was carrying on. The court excluded this as irrelevant and immaterial to any issue in the case. We are unable to see any error in this ruling.

Error is assigned to the court allowing the contents of the so-called bank book to be retranslated and reread to the jury. We see no error in this. It is quite apparent from an examination of the abstract that the interpreters who had previously been used were not very well versed in English and had given a rather confused translation of the original into English. When defendant himself was on the stand, counsel for plaintiff had him read and translate the matter to the jury. This was objected to as a mere repetition of testimony formerly given. The repetition of testimony is a matter so entirely within the discretion of the trial, court that we would not think of interfering unless there was a gross abuse of that discretion, and we see none here.

It is finally urged that the verdict should be set aside because it is so manifestly against the weight of the evidence and contrary to the evidence as to indicate that it is the result of passion and prejudice on the part of the jury. That is a matter entirely within the discretion of the trial court and that court having passed adversely on this contention, we accept its conclusion, adding that on consideration of the testimony, as presented in the abstract before us, it creates no doubt whatever in our mind as to the correctness of the action of the trial court.

It follows that the remaining assignment of defendant, appellant here, that the motion for new trial should have been sustained in untenable.

The judgment of the circuit court is affirmed.

Nortom and Caulfield, JJ., concur.