Stone v. St. Louis Union Trust Co.

NORTONI, J.

This is a suit on a contract for interests alleged to have accrued on a current account of funds deposited by the plaintiff receiver for several years with the defendant trust company. Plaintiff recovered and defendant appeals.

Before stating the case and disposing of the questions arising on the merits thereof, it becomes essential to notice certain preliminary arguments pertaining to the right of this court to review the appeal.

The case is here on a full transcript of the record as authorized by section 813, R. S. 1899, section 813, An. St. 1906. Defendant, appellant, has furnished the court an abstract thereof as well, but it is said this abstract is insufficient, first, for the reason that it does not show what judge presided at the trial of the cause. This is an error in fact, for upon examination, it is clearly disclosed that Hon. Robert M. Foster, judge of the circuit court of the city of St. Louis, presiding in Division No. 3 thereof, presided at the trial of the cause.

The second argument with respect to the insufficiency of the abstract is to the effect that it omits to show the judge who signed the bill of exceptions was either the judge who tried the cause or his successor in office. The bill of exceptions is signed by Judge George H. Williams as the judge presiding in Division No. 3 of the circuit court of the city of St. Louis at the time the bill was tendered, and the abstract recites that Judge Williams was the successor in office to Judge Foster who presided at the trial. So much appears clearly in the abstract of the record immediately above the certificate of the clerk of the circuit court evincing the transcript to be true and complete.

The third argument as to the sufficiency of the abstract is to the effect that it neither shows a filing in this court of a complete transcript nor in lien thereof what is called the short' record. It is true enough the printed abstract omits to state the filing of either a complete transcript or in lieu thereof that the appeal is prosecuted by the short form. But a complete transcript is before us and the file marks evince it to have been duly filed on a proper date. So much of section 813, Revised Statutes 1899, section 813, An. St. 1906, as is relevant to the filing of the transcript in the appellate court, when an appeal is not prosecuted on the short form, provides that the appellant shall cause to be filed in the office of the appellate court fifteen days before tbe first day of tbe term of sucb court a perfect transcript of tbe record and proceedings in said cause. As stated, tbe complete transcript contemplated by tbe statute is before us and an indorsement tbereon by the clerk of tbis court shows it to have been filed in proper time for consideration.

There can be no doubt that tbe filing of tbe complete transcript within tbe time mentioned confers jurisdiction on the court to proceed and determine tbe appeal. Tbe very terms of tbe statute referred to go to tbis effect. But, it is argued that though tbe court has jurisdiction in tbe premises, tbe merits of tbe appeal should not be considered for tbe reason the printed abstract omits to recite tbe fact that a complete transcript bad been filed in tbis court. It seems tbe court ought, in every instance, to take judicial notice of such things as are revealed in its own records and not deny a cause consideration for tbe reason that tbe printed abstract omits to recite a fact which we know to be true from tbe record constantly before us. A rule of practice so highly technical would be most unjust, indeed. It has been expressly ruled by our Supreme Court, iu cases where tbe appeal is prosecuted on tbe short form, that though tbe abstract omits to recite that an order granting tbe appeal was made, it would be sufficient if tbe transcript of sucb an order appeared on file in tbe court. [Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Booth v. St. L., I. M. & S. R Co., 217 Mo. 710, 117 S. W. 1094.] But it is said tbe Supreme Court in numerous cases has declared a rule of decision to tbe effect that it will not search through a long transcript in aid of a defective abstract. So much may be conceded, but tbe theory of tbe cases above cited is that tbe court will look to what appears in tbe judgment and order granting tbe appeal on the short form provided for by section 813, for tbe reason it is quite convenient to do so. In other words, those cases rule that as tbe short transcript is the basis of the court’s jurisdiction “and is of easy access” it will resort thereto in aid of a defective abstract. [Coleman v. Roberts, 214 Mo. 634, 637, 114 S. W. 39; Booth v. St. L., I. M. & S. R. Co., 217 Mo. 710, 714, 715, 117 S. W. 1094.] In the case last cited, it is pointed out that the reason of the rule of decision under which the appellate courts decline to search through- an extended transcript for what the abstract ought to show is that it unduly consumes the time of the court and that the same reason does not obtain when nothing more is to be examined than what appears in the short transcript. The principle announced in those cases is certainly just and should obtain here, for to ascertain the essential fact to the jurisdiction of the court, we are not required to search through the transcript but may discover the matter by viewing the file marks on its cover. And though the abstract omits to mention the fact of filing a complete transcript here, it is quite as “easy of access” by reference to the file mark itself on the transcript. The rules of appellate procedure are becoming so technical- as to frequently sacrifice the justice of the cause to the form of procedure and we feel that the court ought not to contribute as much as a mite to that end. There is certainly a marked distinction in the cases as to looking through a long transcript and those which merely require inspecting, a short one disclosing no more than the judgment and order granting the appeal, or such as is the case here, when no more labor is entailed than is essential to ascertain the file marks on the cover of a long transcript. The objections to the abstract are without merit and should be overruled.

Plaintiff, William J. Stone, is receiver of the Mullanphy Savings Bank, having been appointed to that trust by the circuit court of the city of St. Louis on March 1, 1897. Defendant, St. Louis Union Trust Company, is a corporation duly organized and existing under article 12, chapter 42 of the Revised Statutes of Missouri relating to trust companies. ■ Plaintiff instituted the present suit in obedience to an order of the circuit court having jurisdiction of the receivership and of which he is an officer, to the end of collecting interest at the rate of two per cent on the current account of funds deposited by him as receiver with defendant during the period of his trust. After plaintiff was appointed receiver of the Mullanphy Savings Bank on March 1, 1897, defendant, St. Louis Union Trust Company, on March 2 of the same year, became surety on his bond for the faithful discharge of the receivership in the amount of one million dollars and on the same day plaintiff as such receiver, opened a current account with it. It appears that on and after such date plaintiff deposited with defendant all funds which came into his hands as receiver and checked upon the account at various times in discharging his trust until the institution of this suit.

The suit proceeds as though defendant had contracted to pay interest at the rate of two per cent on the plaintiff’s current account in accordance with the rules of the trust company, but defendant denies this and insists that as it made the receiver’s bond in the sum of one million dollars no interest was to be allowed on the receiver’s account. It is conceded by plaintiff that no express contract whatever was made between the parties as to the payment of interest but he insists there was an implied one to that effect.

The suit does not proceed upon a contract implied by law in the true sense of that term, as for such interest as is reasonable and just, but instead it counts upon an actual, though not express, contract implied in or inferred from the facts that defendant advertised it would pay interest on such accounts and that its rules stipulated the rate of such interest to be two per cent, calculated at certain periods, etc., which offer plaintiff accepted, etc., etc. It is alleged in the petition that about March 1, 1897, plaintiff, as such receiver, opened a current account with defendant corporation by depositing upon general deposit and payable on demand on check or sight draft, the moneys coming into his possession as receiver, etc.; that at the time of plaintiff’s deposit and theretofore, the defendant advertised and held out to the public that it would pay interest at the rate of two per cent per annum on such deposit, said interest to be calculated and determined at such times and at such periods as defendant by its published rules should ordain and establish; that by defendant’s rules then established and in force interest was to be calculated on daily balances for each six months prior to July 1st and December 1st and was on said days to be credited to depositor’s account and thereafter to become a part thereof and bear interest at the same rate and in the same manner as moneys deposited. It is alleged that in reliance on defendant’s said advertisements and'published declarations} plaintiff, acting as such receiver, began and has ever since continued his said deposit and account, etc., etc. Further averments are to the effect that defendant has never allowed nor credited interest on his account; demand has been made therefor and refused; judgment is prayed for in the sum of $3574.72, being interest at the rate of two per cent on the deposits computed in accordance with the rules of the trust company, as stated in the petition.

To sustain the allegations of the petition, plaintiff testified that he had no express contract whatever with defendant as to the payment of interest on the account, but that he had seen and read certain advertisements of defendant in the St. Louis daily newspapers to the effect that it would pay interest on such accounts and that at the time he commenced his deposits as receiver he relied upon such advertisements and believed that interest would be allowed. The newspaper advertisements referred to in the testimony or others of like kind, which defendant authorized and had caused to be published in the daily papers of the city of St. Louis during the month of February, 1897, were introduced in evidence and it appears from them that defendant advertised the fact it was a trust company possessed of capital and surplus of three million dollars; that as such it acts as administrator, trustee, curator, etc., furnishes guarantees of title and abstracts, and allows interest on deposits. Besides this, certain well-known and highly respectable gentlemen of the city of St. Louis are mentioned in such advertisements as officers of the company. It is to be noted that the advertisements in no manner suggest that any particular rate of interest would be allowed on deposits nor how nor when interest would be calculated. All that is contained therein as to this matter is, “Allows interest on deposits.” At no place in his testimony does plaintiff say that he understood any particular rate of interest was to be paid. After allowing the most favorable view to the testimony for plaintiff as to this matter, it appears only at and prior to commencing his account with defendant he knew that it advertised it would allow interest on deposits, and relying upon-such information, he became a depositor therewith. It is conceded throughout the case that at the time the account was opened plaintiff had no knowledge as to rate of interest nor as to the times the petition avers it should be calculated and credited, unless such facts may be inferred from defendant’s rules in evidence, the contents of which are not shown to have been known to plaintiff.

It is argued that the judgment is not supported by the proof for the reason there is naught in the case affording a competent inference to the effect that the minds of the parties ever met with respect to the essential terms of the contract. As before stated, when plaintiff commenced his account with defendant, it sufficiently appears he was induced to do so by advertisements then being carried in the St. Louis newspapers, but such advertisements in and of themselves are wholly insufficient to afford a competent basis for tbe contract sued upon. Tbe contract set forth in the petition is to the effect defendant advertised it would allow interest at two per cent, on current accounts, to be computed as its rules ordained; that the rules of defendant then in force ordained the interest on current accounts was to be computed on the first days of July and December of each year at which dates such interest would be passed to the account as principal and bear interest at the same rate thereof. The testimony for plaintiff and the newspaper advertisement introduced as well clearly show that no rate of interest was mentioned therein. In this respect the particular allegation of the petition is wholly unproved, for plaintiff himself testified to no more than that he saw defendant’s advertisement which stated that interest would be allowed on deposits and at no place in his testimony does he say that he was given to understand by defendant, either through its advertisement, its rules or otherwise that two per cent, would be paid or that calculations would be made at any particular time. Indeed, plaintiff pointedly testified that he had no recollection of ever having seen a copy of defendant’s rules and did not know at the time he commenced the deposit what they contained. Were defendant an ordinary banking institution, we would not hesitate to say that the newspaper advertisement referred to would amount to no more than a mere invitation to negotiate, which, of itself, manifests an intent not to create legal relations on acceptance. See Page on Contracts, secs. 26, 27; Anderson v. Public Schools, 122 Mo. 61, 27 S. W. 610. However, even in this case where a trust company is involved, it is entirely clear that the advertisement alone is insufficient as an offer to deal on the basis of two per cent, interest to be computed at certain periods, etc., etc., for no such suggestion is contained therein. Even if an offer is intended to create legal relations, it must be so complete in itself that upon acceptance an agreement is formed which contains all the essential terms of the contract. [Page on Contracts, sec. 27.]

In view of the fact that defendant is a trust company, it may be that such an indefinite advertisement as that above indicated would be sufficient to afford a basis for a right to recover, on the theory of a contract implied by law to pay such interest as is reasonable or according to a quantum valebat, for it appears that trust companies are, by their charters, required to pay interest in some amount on deposits, though no particular rate is mentioned in the statute. O’ur statute, section 1427, Revised Statutes 1899, section 1427, An. St. 1906, which is parcel of defendant’s charter, confers authority upon it only to receive money in trust and to accumulate the same at such rate of interest as may be obtained or agreed upon or to allow such interest thereon as may be agreed, not exceeding in either case the legal rate. But it is to be noted that this franchise authorizes.such companies to pay interest only as agreed upon or such as may be obtained by it for the funds. Under this statute, our Supreme Court has declared that such companies are not permitted to receive money on deposit in exchange for their credit in current account, as banks do, without paying some interest thereon. [State ex rel. Crow v. Lincoln Trust Co., 144 Mo. 562, 46 S. W. 593.] In view of this obligation which the law enjoins upon institutions of this, character, it may be that such an indefinite newspaper advertisement if relied upon by a depositor wquld afford a sufficient basis for a recovery on the implied obligation to pay such a rate of interest as is reasonable in the circumstances of the case. However, the same statute, section 1427, confers another franchise by which defendant is authorized to become surety on the bond of persons occupying positions of trust, receivers, etc., and as incidental to this it may be competent to require a deposit of the trust funds with it, free of any interest charge, to the end of supervising the faithful administration of the trust for which it has assumed to respond. Such would seem to be a reasonable construction, but the question is neither made nor decided. We expressly reserve it. If this vieAV were accepted, of course, even the implied obligation to pay reasonable interest would fail in the circumstances suggested.

Be this as it may, the present suit does not proceed upon the theory as for a reasonable amount. The petition declares upon a contract for interest at two per cent, which was to be computed on the running account on July 1st and December 1st of each year, when such interest was to be added to the principal of the account and bear interest at the same rate. In these circumstances, it devolved upon plaintiff to prove the cause of action laid in the petition and in this respect he has wholly failed unless it may be inferred from defendant’s rules, of which plaintiff had no knowledge, that he considered them as parcel of the offer at the time he accepted it.

The contract sued upon, though not express, is, nevertheless, an actual contract to be found from the facts in evidence. It is true such contracts are not always to be proved by express and positive statements but may be inferred from other competent facts and circumstances. But to find such a contract, it, of course, involves a finding of fact to the effect that the minds of the parties have met in the same sense at the same time as contradistinguished from those contracts which, accurately speaking, may be implied by laAV Avhen there is no aggregatio mentium. Strictly speaking, contracts implied by law are other and distinct from actual contracts, for if there be an actual contract, the fiction of the law for implication to that effect is not essential. A typical case of a contract implied by law is one where a. person may perform a valuable service for another, expecting at the time to be compensated therefor and the other party Avho receives the value intended at the same time no payment therefor should be made. In such circumstances, though there was no agreement of the minds, the law implies a contract to the effect that reasonable compensation shall be made. The distinction has heretofore been pointed out in Weinsberg v. St. Louis Cordage Co., 135 Mo. App. 553, 116 S. W. 461; Wagner v. Edison Electric, etc., Co., 141 Mo. App. 51, 121 S. W. 329.

Plaintiff haying sued upon an actual contract and stated its terms, to be inferred or implied from the facts in proof as distinguished from one implied by law, it is, of course, essential for him to give proof which affords a reasonable inference at least to the effect that the minds of the parties agreed not only upon the fact of a deposit but agreed as well upon the terms of two per cent, interest to be calculated on the first days of July and December in each year and. then passed to the account as principal and to draw interest ás such. Agreement of the minds is an essential element of every such contract and without it no contract appears. [Page on Contracts, sec. 22; Smith v. Vernon County, 188 Mo. 501, 513, 87 S. W. 949; 7 Am. and Eng. Ency. Law (2 Ed.), 98.] Such an agreement is usually reached by an offer put forth on the one side and accepted on the other and if an offer afterwards accepted is relied upon as in.this case, such offer must be sufficiently certain so that its acceptance will include all of the terms of the contract. [Page on Contracts, sec. 27; 7 Am. and Eng. Ency. Law (2 Ed.), 138, 116.] If an offer is not communicated to the party seeking to avail himself thereof as the basis of a contract, it will be insufficient; for an acceptance of an offer, to be effective, must leave nothing to be afterwards agreed upon, but must meet the offer absolutely and close with it as it stands. [Cangas v. Rumsey Mfg. Co., 37 Mo. App. 297-307.] It is obvious that if all of the terms of such offer are not communicated to the party, then there is no agreement of the minds in the same sense at the same time with respect to such terms as are not communicated. [Clark on Contracts, 37; Page on Contracts, sec. 30; Cyc. 252; James v. Marion Fruit Jar, etc., Co., 69 Mo. App. 207; 7 Am. and Eng. Ency. Law (2 Ed.), 138.] The rule as to communication of the terms of an offer is thus stated in 9 Cyc. 252: “To constitute an agreement, it is obvious that the intention of the parties must be communicated. One cannot accept an offer which has not been communicated to him, and therefore as a general rule an uncommunicated offer, whether by words or acts, cannot result in a contract.” gee, also, 9 Cyc. 246. Again the same work thus states the rule when it appears a recovery is sought on the theory of contract in accord with the terms of an offer not known to the party claiming the right to recover the benefit:

“It would also seem clear that where one performs services by which another is benefited he cannot recover on the other’s offer to pay for them, of which he had no knowledge when the services were rendered. Where a person does an act for Avhich a reAvard has been offered, not knoAving at the time he does the act that the offer has been made, there can be no meeting of minds between the parties nor can his act be said to have been affected by the unknown offer. Hence it has been properly held that a reward cannot be claimed by one who did not know that it had been offered. In some states the contrary has been held, although it would seem not on logical grounds.” [9 Cyc. 254.]

See, also, Smith v. Vernon Co., 188 Mo. 501, 513, 87 S. W. 949.

Plaintiff having failed to show in any manner that defendant had offered two per cent, interest on current deposits to be computed as above indicated, the counsel seek to support the judgment of the trial court Avith respect to this matter by referring to defendant’s rules *in evidence. We are willing to concede in this case against the trust company that, because of the peculiar provisions of its charter, its rules, in connection with the indefinite advertisements should be considered together as an offer sufficient as the basis of the contract declared upon, if it appeared plaintiff had accepted the same within the sense of the law and made his deposit in reliance thereon. But the evidence is conclusive to the effect that plaintiff had no knowledge whatever of those terms of the contract relied upon which is sought to be deduced from defendant’s rules, that is the rate of interest and time and manner of computation; for he says that he has no recollection of ever having seen such rules nor was he informed as to their contents. In such circumstances, it is entirely clear that there is no evidence in the case from which the court could find a contract between the parties whereby defendant agreed to pay two per cent, interest as alleged in the petition, for if such an offer wei*e made, it was not communicated to the plaintiff and therefore could not have been relied upon by him in the sense of the law at the time the deposit was made. Indeed, the proof does not even show the rules referred to were ever published or posted.

Let us not be misunderstood as to the plaintiff’s testimony in respect of this matter; for, while he said that he relied upon defendant’s advertisements at the time he made the original deposit, he did not say that he relied upon an offer to pay two per cent, interest to be computed as indicated in the petition. As to this matter, Senator Stone was very conservative and with perfect frankness declined to say more than that he relied merely upon such advertisements as he had seen and they indicated no more, than that defendant would pay interest, on deposits, without mentioning the rate or other terms. However, plaintiff has performed the full measure of his duty in prosecuting the suit in obedience to the order of the court which directed him to do so, though it may not be sustained.

It is insisted the judgment should be reversed outright but we believe the interests of justice may be sub-served by a remand of the cause.

Plaintiff may amend his petition if so advised to the end of seeking such interest as is reasonable and just. Amendments are allowed for the purpose of saving cases from the operation of the Statute of Limitation and the courts are liberal in respect of such matters when the cause of action is not totally different. [Lottmann v. Barnett, 62 Mo. 159.] It is not' doubted that one may amend the cause of action stated on an express contract by declaring on an implied one of the same general import. The question has been recently decided. See City of Farmington v. Farmington Telephone Company, 135 Mo. App. 697, 116 S. W. 485.

The judgment should be reversed and the cause remanded. It is so ordered.

All concur.