Smith v. Dowling

BLAND, P. J. — Ford Smith, receiver of Active Building and Loan Association No. 2, sued defendant on the following promissory note, to-wit: “St. Louis, October 9, 1895. $500. Three months after date I promise to pay to the Active Building and Loan Association No. 2, five hundred dollars, value received, negotiable and payable without defalcation or discount, with interest at the rate of six per cent per annum from date. Payable at 1001 Chestnut, having deposited and [517] pledged my fifteen shares of stock of said company as collateral security. This note is non-negotiable. “James S. Dowling.” Plaintiff alleged the dissolution of the association, and his appointment as receiver. The answer was that the note was wholly without consideration. Trial by jury; verdict and judgment for defendant. Plaintiff appealed, and for reversal of the judgment assigns as error on the trial the admission of improper evidence, and the giving of an improper instruction and the refusal of proper ones. 1. It appears, substantially, from the evidence that in 1890 defendant purchased twenty shares of stock in the association, and thereafter paid one dollar per share ($20) per month on these shares, until in October, 1894, when he gave notice of his withdrawal of fifteen of the shares. At this time the withdrawal value of the fifteen shares was $825. The association did not have the funds on hand to pay this sum or any part of it, and the matter rested, until July 8, 1895, when the board of directors at a regular meeting made an order to loan defendant $500 at six per cent, due in ninety days. On the following day the original note, of which the one in suit is a renewal, was executed, and at the same time the corporation executed and delivered to defendant its note for $500 as a part payment of the withdrawal value of his fifteen shares of stock. The defendant and the officers of the corporation testified that the note in suit was wholly without consideration; that it was given as a memorandum or “sort of receipt” for the payment (by note) of the $500 to defendant due him on the withdrawal of a part of his stock, and was taken in the form of a note as a matter of' convenience to its peculiar system of bookkeeping. To the introduction of this testimony, i. e., that the note was given as a memorandum or “sort of receipt” the plaintiff’s counsel objected, because [518] the testimony was “irrelevant and incompetent.” The objection was overruled. The objection is too general. The supreme court in banc in Kansas City v. Oil Company, 140 Mo. loc. cit. 475, say, “Every court is entitled for its own protection to pass upon objections to evidence. It will not be charged up with a lot of absurd rulings which it never made. The practice is plain and easily observed. If counsel object to evidence it is his duty to state the grounds thereof, and if the court thus advised overruled his objections he must at the time save his exceptions.” In Three States Lumber Company v. Rogers, 145 Mo. 445, it was ruled that an objection “that evidence is irrelevant, incompetent and immaterial” will not be considered by the supreme court on appeal, because too general. Further the bill of exceptions fails to state that the appellant saved an exception to the ruling of the court on his objection. As was said in Kansas Oity v. Oil Company, supra it was the duty of the counsel to have excepted to the ruling of the court at the time. See, also, Lee v. Lee, 19 Mo. 420; Craighead v. Wells, 21 Mo. 404. 2. Instruction number 2 given for defendant is predicated on the evidence, as it was permited to go to the jury without valid objection, and from the testimony deduces a correct legal conclusion. 3. The refused instructions asked by appellant sought to apply the doctrine of estoppel to the transaction between the association and respondent, on the ground that Dowling being a director of the association was estopped to deny what the corporate books show — that is, that 'his note was carried in the book accounts of the association as a receivable bill and was reported monthlyto the secretary to make up the aggregate of assets of the association. It is not shown by any testimony that respondent was aware of the fact that the note was included in the monthly financial statements made by the secre [519] tary and managing officers of the company, nor was it so reported in an itemized statement. It is not shown that any creditor was induced to give credit to the corporation on account of this so-called asset or in reliance on the correctness of the monthly financial statements, and we are unable to discover any evidence in the record which places the respondent in such a position as to estop him from showing that the note was given without consideration. There is no evidence of fraud in the transaction, nor that the funds of the association were dissipated thereby. There is no room for the application of the doctrine of estoppel, and ,the court correctly refused to so instruct the jury. The judgment is affirmed. All concur.