author: PRESLAR, Justice.

text:
    E. W. EVERETT et al., Appellants, v. HUMBLE EMPLOYEES WEST TEXAS FEDERAL CREDIT UNION, a corporation, Appellee.
    No. 5621.
    Court of Civil Appeals of Texas. El Paso.
    March 11, 1964.
    Rehearing Denied April 15, 1964.
    Warren Burnett, Lee Arnett, Odessa, for appellants.
    Ken Griffin, Odessa, for appellee.
   PRESLAR, Justice.

Appellants, who were defendants in the trial court, move the dismissal of this appeal on the grounds of lack of jurisdiction for the reason that the judgment appealed from is not a final judgment. We agree that the appeal should be dismissed.

Appellee, Humble Employees West Texas Federal Credit Union, sued one U. L. Kings-bury as the maker of a note, and the appellants as accommodation co-makers of such note. Kingsbury did not answer, and on May 23, 1961, the court entered default judgment against him. Appellants filed their answers and proceeded to trial, and judgment was rendered against them on July 18, 1962. From this judgment they appealed, and they now seek dismissal of such appeal.

All parties agree and concede the applicable law and facts to be:

1. Only final judgments are appeala-ble (Art. 2249, R.C.S.192S) ;
2. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law (Rule 301, Texas Rules of Civil Procedure);
3. No special exception provided by law exists in this case;
4. No judgment or decree will be regarded as final with reference to appeals, unless all issues of law and fact necessary to be determined were determined and the case is completely disposed of so far as the court has power to dispose of it. (Lubell v. Sutton, Tex.Civ. App., 164 S.W.2d 41; Ware v. Jones, 250 S.W. 663, at 664, Com. App., 1923; Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60, N.R.E.).

It is apparent that neither of the judgments is in itself a complete and final judgment. The first, the default judgment against Kinsgbury, provides, among other things:

“But, it appearing to the Court that the Defendants, E. W. Everett, H. R. Langley, and Clyde A. Miller, alleged co-makers of the promissory note with U. L. Kingsbury given to the Plaintiff herein have filed answers herein, this judgment shall be and is interlocutory against said Defendant, U. L. Kings-bury, until a disposition is made as to the rights of the other Defendants when this judgment against U. L. Kingsbury shall become final. For all of which let execution issue upon this judgment become final.”

The second judgment, dated July 18, 1962, was rendered against appellants herein following jury trial, and makes no findings or orders as to Kingsbury. It merely mentions him as a party defendant, and it does not refer to the prior judgment against him. Obviously, this judgment is not final for failure to dispose of one of the parties defendant.

The judgments, taken together, dispose of all the issues as to all parties. But can the two be treated as one? We think not, for even if we ignore the rule of “one final judgment”, there are the ministerial acts to be performed as to the judgment in the case. Also, rights of the parties would be left unresolved. For instance,' appellants herein are entitled to have their co-defendant, Kingsbury, subjected to the judgment, yet no execution could issue against him under either judgment, for the first is interlocutory by its terms and the second makes no disposition of the cause of action against him.

The Court of Civil Appeals at Tyler decided the precise question before us. in an opinion rendered January ?, 1964, styled Sisttie v. Holland, and reported in Tex.Civ.App., 374 S.W.2d 803. That court had before it two judgments in the same case; neither was final; but the two, treated as one, disposed of all rights and all parties. It was determined that the rule required one final judgment, in the absence of which there was no jurisdiction for appeal.

Having determined there was no final judgment in this case, the appeal is dismissed. All costs of appeal are taxed against the appellants.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Carl D. ESTES, Sr., Appellant, v. Gid REDING, Appellee.
    No. 5668.
    Court of Civil Appeals of Texas. El Paso.
    April 1, 1964.
    Rehearing Denied April 15, 1964.

      Ed Keys, Monahans, for appellant.
    Johnson & Dionne, Fort Stockton, for appellee.
   CLAYTON, Justice.

This is an appeal from a judgment of the trial court granting a motion for summary .judgment in favor of the appellee.

Suit was filed by appellee against appellant for a declaratory judgment involving a claim asserted by appellant to certain min■eral rights, and to declare void a purported •deed to certain lands and mineral interests, apparently dated May 20, 1953, but acknowledged March 26, 1953, from appellee as grantor to appellant as grantee and filed -of record on April 1, 1963.

After granting appellee’s motion for summary judgment and at the request of the appellant, the trial court made certain “Findings of Fact”. Such findings by the trial court are unnecessary in disposing of a motion for summary judgment, as they are only appropriate in deciding issues of fact. In granting a motion for summary judgment the court merely rules that there are no material issues of fact. Wright v. Bida, 359 S.W.2d 661 (Tex.Civ.App., 1962, n. w. h.), and cases there cited; and all doubt as to the existence of a genuine issue as • to any material fact must be resolved against the party moving for summary judgment. Sullivan v. Sisters of St. Francis of Texas, 374 S.W.2d 294 (Tex.Civ.App., 1963, n. w. h.), citing numerous authorities. On appeal the duty of the reviewing court, where motion for summary judgment has been granted, is to determine if there are any issues of fact to be tried, and if the evidence raises any issues of fact to be tried by a court or jury a summary judgment is not proper. Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662 (S.Ct., 1964).

Relative to the purported deed mentioned above from appellee to appellant which appellee sought to have the trial court declare void, the trial court made the following findings of fact:

“4. I find that in connection with the second oral contract between Gid Reding and Carl D. Estes, Sr., Gid Reding signed his name to an instrument conveying to Carl D. Estes (Sr.) the surface of Tract 5 and an undivided Vo of the minerals in Section 36, which instrument is dated May 20, 1953 and purports to have been acknowledged March 26, 1953, and which is attached to the deposition of Carl D. Estes, Sr. as Exhibit 11.
“5. I find that such instrument dated May 20, 1953 and acknowledged on . March 26, 1953 was given by some /me to Carl D. Estes, Sr., so that he could use it to see whether he could borrow money on the land or to find out from the Veterans Land Board whether his son could borrow money on it, and that it was not delivered to Estes, Sr. as a conveyance of the surface of Tract 5 and an undivided % of the minerals in Section 36.” (Emphasis supplied).

We find ourselves laboring under what must have been the same confusion of the trial court when he found that this instrument was “given by some one” to appellant Carl D. Estes, Sr. We find numerous conflicting statements regarding the circumstances of delivery of this instrument, and the intention of the parties at such time, in the depositions and affidavit upon which this motion for summary judgment was submitted to the trial court — even in the testimony of each party himself. Yet the delivery of this deed (if it is a deed) is a matter of basic importance to the sufficiency of the instrument itself to serve as a deed.

To render a deed effective it must be delivered into the control of the grantee with intent of the grantor that it shall become operative as a conveyance. The proof must show both an intention on the part of the grantor to deliver the deed as a conveyance of the property and a mutual and concurrent intention on the part of the grantee to accept it as a conveyance of the property, before it can be said as a matter of law that the delivery is complete * * *. It (delivery) is the final act, without which all other formalities are ineffectual.” (19 Tex.Jur.2d 358).

And the question of whether there has been an actual delivery of the instrument under the circumstances necessary to constitute it a deed is a question of fact to be determined by the trier of the facts — a court or jury. Goodman v. Goodman, 363 S.W.2d 893 (Tex.Civ.App., 1962, n. w. h.). We feel that the conflicting testimony of the parties raised a question of fact, and we must here say, as the Supreme Court said in Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959): “* * * summary judgment may not properly be granted cverr on the testimony of the opposite party when that testimony will support either of two contrary conclusions with respect to a material issue of fact.”

We feel, and hold, that there are in this record conflicts in testimony that raise questions of fact on various issues such as the one commented on above, which require determination by the trier of the facts and which cannot, therefore, support a summary judgment.

The judgment of the trial court granting the summary judgment is reversed and this cause remanded for trial.


author: PER CURIAM.

text:
    James EDWARDS, Jr., et al., Appellant, v. C. W. HUGHES et al., Appellee.
    Motion Nos. A 85 & A 87.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 19, 1964.

      M. W. Plummer of Plummer & Wade, Houston, for appellant.
    M. S. Munson, Jr., Wharton, for appellee.
   PER CURIAM.

On February 20, 1964, appellants tendered to the clerk of this court for filing the transcript in this cause. It appeared from such transcript that the judgment appealed from was signed and entered December 11, 1963, and notice of appeal was given on that date, there being no motion for new trial. Since no motion to extend the time for filing the transcript, as provided by Rule 386, Texas Rules of Civil Procedure, accompanied said transcript, our clerk declined to file same, and notified appellant’s counsel of this fact. Thereafter, on February 26, 1964, seventy-seven days after rendition of the final judgment in the trial court, appellants filed their motion (No. A 85) seeking an extension of time to file the transcript and statement of facts.

On February 29, 1964, appellees filed their motion (No. A 87) to affirm this cause on certificate. Said motion was accompanied by a certified copy of the judgment, a proper certificate of the clerk of the trial court, and a copy of the appeal bond, all as provided by Rule 387, T.R. C.P. Said motion was set for hearing, and due and sufficient notice was given the parties thereof.

Motion No. A 85, being Appellants’ Motion to Extend Time for Filing Transcript and Statement of Facts, and Motion No. A 87, being Appellees’ Motion to Affirm on Certificate, will be consolidated and disposed of together.

Since the motion for extension of time within which to file the transcript and statement of facts was filed in this court more than seventy-five days after rendition of the judgment in the trial court, the matter is no longer discretionary with this Court, and we are wholly without jurisdiction to grant the motion, or to permit the transcript and statement of facts to be filed. Rule 386 is mandatory, and appellant must comply with its provisions. Garrett v. Mercantile National Bank, 140 Tex. 394, 168 S.W.2d 636, affirming same cause, Tex.Civ.App., 170 S.W.2d 238; Nami v. Industrial Mfg. Co., Tex.Civ.App., 223 S.W. 2d 653; Wigington v. Parker Square State Bank, Tex.Civ.App., 321 S.W.2d 334; Armstrong v. West Tex. Rig Co., Tex.Civ.App., 339 S.W.2d 69, writ ref n. r. e. Appellant’s Motion No. A 85 is overruled.

From what has been said above, it follows that appellees’ Motion No. A 87, to affirm this cause on certificate should be granted, including judgment for costs against appellant, and against Lawyers Surety Corporation as surety on appellants’ cost bond, and it is so ordered. Rule 387, T.R.C.P.; Nami v. Industrial Mfg. Co., supra; Wigington v. Parker Square State Bank, Tex.Civ.App. 324 S.W.2d 91; Irwin L. Jones v. W. W. Banks, Tex.Civ.App. 331 S.W.2d 370 n. w. h.; Carter v. City of Fort Worth, Tex.Civ.App., 357 S.W.2d 581, writ ref n. r. e.

Appellants’ Motion No. A 85 for extension of time is overruled. Appellees’ Motion No. A 87 to affirm on certificate, is granted. All court costs in the trial and appellate courts are assessed against appellant and Lawyers Surety Corporation.


author: RENFRO, Justice. v

text:
    WEBB, TEXAS VOLUNTEER FIRE DEPARTMENT et al., Appellants, v. B. E. ENGLISH, Appellee.
    No. 16501.
    Court of Civil Appeals of Texas. Fort Worth.
    March 13, 1964.
    Rehearing Denied April 10, 1904.
    DeVore, Ashworth & McGahey, and Clyde R. Ashworth, Arlington, for.appellants.
    Cantey, Hanger, Gooch, Cravens &, Scarborough, and Jack C. Wessler, Fort Worth, for appellee.
   RENFRO, Justice. v

Suit was brought by English against the Webb, Texas Volunteer Fire Department' and its officers for an injunction' enjoining the defendants from constructing a building on an area immediately west of plain-, tiff’s Lot No. 5, which area plaintiff claimed to be a public street.

In a non-jury trial judgment' was rendered for plaintiff.

The defendants appealed.

The recorded plats show an undesignated area (shown by evidence to be 220 by 210 feet) lying immediately west of Lot 5. Lot 4 is north of Lot 5 and Lot 6 is south of Lot 5. Lot 8 is west of Lot 6 and Lot 3 is west of Lot 4. Lot 3 is north of the undesignated area, and Lot 8 is south of the undesignated area. Between Lots 6 and 8 is shown a street bearing the name “Payne”. Between Lots 4 and 3 is a street with the word “street”. There is no line on the plat from Lot 8 to Lot 3. The width, however, between Lots 3 and 4 and- Lots 8 and 6 is the same, i. e., 60 feet. On the west of the undesignated area are, from south to north, Lots Nos. 9, 10, 11 and 2. Lot 10 is west of Lot 8 and between the two lots appears a street designated “Main”. Lot 2 is west of Lot 3 and between them appears a street with the word “Street”. Lot 11 is immediately west of the undesignated area, and across that area from Lot 5. The defendants contend that since the plats do not show a line from the northeast corner of Lot 8 to the southeast corner of Lot 3, and no roadway has been paved or improved across the undesignated area west of Lot 5, Payne Street is not continuous but dead-ends both on the north and the south at the undesignated area..

The court made the following findings of fact:

“1. The Town of Webb, Texas, was platted and dedicated by Plat and Dedication dated in the year 1903, recorded in Volume 106, page 95, Plat Records, Tar-rant County, Texas, and by Plat dated in 1909 and recorded in Volume 310, page 23, Plat Records, Tarrant County, Texas.
-'“2. B. E. English, plaintiff, is the owner of Lot or Block 5 in the Town of Webb, Tarrant County, Texas, as shown by such plats and dedications. ’ ■
.“3. Each .of'/the plats and dedications referred to in paragraph T, above, dedicated to the publip a street being 60 feet wide, running in a northerly and southerly direction, called Payne Street, immediately West of and adjoining said Lot or Block 5 in the Town of Webb, Tarrant County, Texas.
“4. That portion of Payne Street immediately West of and adjoining Lot or Block 5 has not been abandoned or officially closed.
“5. When plaintiff, B. E. English, purchased Lot or Block 5 in the Town of Webb, he purchased same with reference to and in reliance upon the plat and dedication of the streets, including Payne Street, to the public.
“6. Defendant, Webb, Texas Volunteer Fire Department is an unincorporated association and the individual defendants are officers and members of such association.
“7. Prior to the commencement of this action the defendants began the erection of an obstruction in the nature of a building in Payne Street, being the street immediately West of and adjoining Lot or Block 5 in the Town of Webb, such building or obstruction being in that portion of Payne Street immediately West of such Lot or Block 5.
“8. That prior to the defendants beginning the construction of such building and obstruction, they were advised by plaintiff and were actually aware of plaintiff’s-contention that such obstruction would be-in a street dedicated to the public and: that plaintiff intended to protect his rights-in having such street remain unobstructed.. Plaintiff, as the owner of Lot or Block 5-in the Town of Webb would suffer damage should Payne Street immediately West of and adjoining such Lot or Block 5 be-obstructed as sought by defendants.”

We have studied the plats and dedications- and all other evidence and find that the-findings are supported by the record.

The court’s conclusions of law were:

“1. An area 60 feet wide immediately West of and adjoining Lot or Block S in the Town of Webb, Tarrant County, Texas, as shown on the plats and dedications thereof recorded in Vol. 106, page-95, and Vol. 310, page 23, Plat Records, Tarrant County, Texas, is a street designated on said plats as Payne Street.
“2. Plaintiff, as the owner of Lot or Block 5, Town of Webb, Tarrant County, Texas, is entitled to have that portion-of Payne Street immediately West of and: adjoining Lot or Block 5 remain unobstructed.
“3. Defendants should be enjoined from in any way or manner obstructing that portion of Payne Street immediately West of and adjoining Lot or Block 5 in the Town of Webb, and should be required to remove from such street any obstructions heretofore placed therein by them,”

The court correctly applied the law to the facts in rendering judgment for plaintiff.

The judgment is supported by Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, and Shields v. Harris County, Tex.Civ.App., 248 S.W.2d 510.

All points of error are overruled.

Judgment affirmed.


author: ARCHER, Chief Justice.

text:
    Miller RHOADES, Appellant, v. CITY NATIONAL BANK, Administrator of The Estate of Chas. A. McCormick, Deceased, Appellee.
    No. 11178.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1964.
    Rehearing Denied April 15, 1964.
    David L. Tisinger, Austin, for appellant.
    Hornsby & Kirk, .Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from the action of the Trial Court granting the motion of defendant, appellee herein, for a summary judgment against plaintiff, appellant herein, that the contract sued on was illegal.

The appeal is predicated on two points assigned as error by the Trial Court in granting the summary judgment when the contract sued upon was legal and valid, and on the alleged ground that the law of ..the case had already determined that the contract was illegal.

Plaintiff alleged that the defendant’s deceased agreed to purchase or cause to be purchased from plaintiff 10,000 shares of International Life Insurance Company stock for the sum of $60,000.00, and that the defendant’s deceased failed to carry out the agreement and that plaintiff was damaged in the sum of $40,000.00 and the alternative for specific performance.

The defendant filed a Motion for Summary Judgment based on the illegality of the contracts, to which the plaintiff did not file an answer or counter affidavit

By stipulation, the pleadings on the previous appeal to this Court in Cause No. 10,950, in which a judgment was rendered that Rhoades take nothing as to the International Life Operating Company and International Life Insurance Company, in McCormick v. Rhoades, 357 S.W.2d 595, er. ref., n. r. e., as well as the record should be looked to upon this appeal for all purposes, and we refer to the former cause and the proceedings therein, as well as the decision for all purposes.

The cause was remanded as to the suit against McCormick Estate, and a trial was had and the result was as hereinabove mentioned.

In the former case the judgment was rendered for the Life Insurance Company upon the basis that the alleged contracts, oral or written, are in violation of the law which had been affirmatively plead by the insurance company, but not by the representatives of the McCormick Estate. In the instant case such was done.

We believe that the contracts sued upon by Rhoades were illegal an'd that the Court properly sustained the Motion for Summary Judgment because the plaintiff cannot recover. Article 3.67, Insurance Code of Texas, V.A.T.S.; McCormick v. Rhoades, supra; 4 Tex.Jur.2d, 707-709, Sec. 1014; Slaughter Cattle Company v. Potter County, Tex.Civ.App., 235 S.W. 295, (affirmed in 254 S.W. 775, Com. of Appeals).

The cause of action on which appellant based his pleadings is that McCormick had agreed to purchase, or have purchased, 10,000 shares of Life Insurance Company stock for $60,000.00. Further allegations were that the Operating Company and the Life Insurance Company operated as agents of each other in the purchase of life insurance company stock, under a plan whereby some policyholders have an option to have applied dividends and "guaranteed funds” on life insurance issued by the Life Company to an account with the Operating Company, for the purpose of having the latter buy stock for such policyholder in the Life Company and alternatively a full written contract with the Operating Company; that at all times McCormick was the majority stockholder of the corporations and acted jointly with the corporations, and is jointly liable.

The pleadings of appellant are the same in this appeal, the evidence and judicial admissions are identical, and the record in this appeal as well as in the former appeal are before this Court by stipulation.

There is no evidence that McCormick desired to purchase the stock from Rhoades for himself, he already had a majority of the shares.

At the time the alleged agreement to purchase was made at a price of $6.00 per share, the evidence is that a little later on McCormick offered to sell for $1.83 per share.

The plan appears to be for Rhoades who was a director to sell to the policyholders through the Operating Company, and to receive money in connection with the plan, and as a director of the Life Insurance Company, Rhoades was prohibited by Article 3.67, Insurance Code of Texas, and is illegal. Montgomery Ward and Company v. Lusk, Tex.Civ.App., 52 S.W.2d 1110, er. ref.; Mercury Life & Health Company v. Hughes, Tex.Civ.App., 271 S.W.2d 842, er. ref.

Since we in the former cause wrote extensively and cited many authorities, it is not essential that we go more into detail than we do in this appeal.

The judgment is affirmed.


author: WELBORN, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Russell SMITH, Appellant.
    No. 50131.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Rendlen & Rendlen, Hannibal, Charles S.. Scott, Scott, Scott, Scott & Jackson, Topeka, Kan., for appellant. '
    Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

The appellant, Russell Smith, was charged by information in the Monroe County Circuit Court with felonious assault in violation of Section 599.180, RSMo 1959, V.A.M.S., by throwing acid on Ted Donovan on October 6, 1960. A jury found the appellant guilty and fixed his punishment at two years’ imprisonment. After his motion for new trial was overruled, appellant took this appeal from the judgment and sentence entered on the verdict.

The state’s evidence showed that the appellant and Donovan, both residents of Monroe City, had known each other for twenty years and, prior to the events in question, had apparently been oil friendly terms. Donovan had lived in Macon in 1958 and 1959, but, on returning to Monroe City, he had visited in the Smith home three or four times a week and frequently took meals with the Smith family. Donovan was a carpenter and from time to time employed two of Smith’s sons.

On October 6, 1960, Donovan went to the Smith house around noon to find out whether the boys would be available to work the next day on a barn. The appellant and his sons were cleaning turtles at the time. Smith told Donovan to come back that evening, when they would know how they got along with the turtles and whether the boys could work for Donovan the next day.

According to Donovan, he returned to his work at a job at Clark’s Motor Company in the afternoon. At about 6:00 P.M., he drove to the Smith house and parked beside Smith’s panel truck in front of the house. He walked to the front door and knocked twice. In Donovan’s words: “I knocked on the door the second time and just as I knocked I seen his wife shoot out the kitchen. She had the light going back in the kitchen there. * * * No lights in the other three rooms whatsoever * * * Well, just about the time she slammed the door he hollered ‘Come on in Ted, I want to show you something,’ or T got something to show you,’ and I just opened the door and stepped in and had my left hand on the door knob, on the front door knob, and I said ‘Where you at Russ ?’ and he said, ‘Right here,’ and I turned to the left and, boy, .that is when I got it. * * * Well, he threw something in my face and then he tried to grab me and I pushed him back and got out the door and got in my car and got to the cemetery, and I was just burning, my eyes were as black as they could be and swelling, and I throwed a sweat shirt over my face and laid down underneath the hydrant. * * * I asked him, I said ‘What is this all about ?’ and he said- ‘You know, you know, you know’, and that is all that was ever said.” V

Donovan stated that he did not see the appellant at the time of the incident, but he identified the voice which he heard as that of Smith.

The next day Donovan went to a hospital in Hannibal where he remained for seven or eight days. Dr. W. J. Smith, M.D., examined Donovan at the hospital and found acid burns about his face and eyes.

Billy Hunter testified that Donovan came to where he was working in the cemetery at about 8:00 o’clock on October 6, and that his face was red. On cross-examination, Hunter stated that Donovan first said that he got something in his face while painting at the Ford garage. He said nothing about anything happening at Smith’s. According to Hunter, he went to the Smith house at around 9:30 P.M., and Smith asked whether or not he had seen Donovan and told Hunter that he had thrown muriatic acid in Donovan’s face.

Hunter’s wife testified that Smith came by her house on the evening in question and asked her whether or not she had seen Donovan. According to Mrs. Hunter, Smith said: “Well, I done him the way I done the other one.”

Henry and Eula Medford, husband and wife, testified that one night, the date of which they could not fix, Smith came by their house and said: “I put another man in the hospital * * * Ted Donovan. I throwed acid in his face.”

Sheriff Mark Bodine of Monroe County-placed Smith under arrest in his home on October 7. According to the sheriff, Smith at that time said that he had put Donovan in the hospital. According to Bodine, Smith said: “Well, he came up to my house here last night and I saw him coming and I got over here behind the door and he knocked at the door. * * * I saw who it was and I told him to come in and he opened the door and he stepped around the door and I was behind and I throwed this acid in his face.” On rebuttal, Bodine stated that Smith told him that Donovan “was running his wife.”

Two members of the Missouri State Highway Patrol testified that they heard Smith, on October 7, state that he had thrown muriatic acid into the face of Donovan. One of the patrolmen testified that, at the Smith house, he asked for the container from which the acid had been thrown. One of the daughters of Smith went into the bedroom adjoining the living room into which the front door opened and picked up a jar off the floor behind the bedroom door and gave it to the patrolman.

According to Doctor Smith, muriatic acid is a strong acid, having capacity to destroy flesh. It is used in soldering.

The testimony of the defense endeavored to show that the appellant was not home at the time of the alleged offense and further that the acid was thrown by one of appellant’s daughters in order to ward off Donovan’s improper advances. Appellant and his son, Jack, testified that the two of them drove together to Quincy, Illinois, 38 miles from Monroe City, on the afternoon of October 6. They arrived in Quincy at about 3:00 or 3:30. After attending to some matters, including the sale of turtles to, and purchase of bait from, Yancey’s Fish Market, they left Quincy at around 6:00 P.M. According to them, the driving time from Quincy to Monroe City was about an hour. Jack testified that it was at least 7:00 P.M. by the time they got back to Monroe City.

Orval Yancey, the operator of the fish market, testified that he purchased turtles from appellant on the afternoon of October 6 and saw him then at his place of business in Quincy. He stated that Smith left there at about 5 :30.

The appellant’s daughter, Carolyn Marie Smith, who was IS years old at the time of the incident involved, testified that, on the date in question, she and an older sister, Shirley Mae, returned home after grocery shopping at about 5:00 or 5:30. Their mother, their sister, Nancy, aged three, and Donovan were in the house when they returned. Donovan was in the living room, watching television and holding Nancy. According to Carolyn, she, her mother and Shirley went to the clothes line in the back yard to take some dry clothes off the line and hang out others. Carolyn got an arm load of dry clothes and took them to the house, entering the house at the rear and going through the living room where Donovan was and into the adjoining bedroom where she laid the clothes on the bed. According to Carolyn, “I heard some commotion behind me like someone was behind me and I turned around and it was Ted Donovan, and he grabbed my arm and he said, ‘Come on, it won’t take long. I am not going to hurt you,’ and he said something bad that I don’t want to repeat if I don’t have to, and he grabbed my arm and I swung around and I grabbed the acid and threw it in his face.” She testified that the acid was in an open jar which had been placed in a “cubby hole” in a dresser where a door had come off. On cross-examination, Carolyn said that her father had put the acid there three to five days previously for protection “because that wasn’t the only time he has tried to bother me.”

Shirley Mae testified that Donovan was in the house when she and her mother and Carolyn went to the clothes line and that, after Carolyn took in some dry clothes, she heard someone screaming and she and her mother ran into the house and found Carolyn “emotionally upset” and saw Donovan driving off in his car.

Both Carolyn and Shirley testified that the appellant was not present at the time of this incident and that he returned home at 6:30 or 7:00 P.M. According to the girls, at around 9 o’clock, Billy Hunter came by the house and told the appellant that Donovan had got some paint thinner in his eyes. According to them, Smith told Hunter that it wasn’t paint thinner, that it was acid and he got it at Smith’s. Another son, Freddie, also testified that he was present and heard such conversation between his father and Hunter.

The daughters, as well as Samuel Gillespie who later purchased the house from Smith, testified that there were marks from the acid on the floor of the bedroom, but that there were none in the living room.

The appellant, when asked why he had told the sheriff that he had thrown the acid, stated: “My daughters were all upset, and my whole family was upset, and they had to go to school, and there had been an incident happened ahead of this that put their name in the paper, and I didn’t want their name back in and I told them I would just say I did it.”

In rebuttal, Donovan denied that Carolyn threw acid on him.

On this appeal, the appellant contends the state’s evidence failed to establish, beyond a reasonable doubt, the appellant’s guilt. The appellant reaches this conclusion by arguing that the state’s case was based “upon a circumstance that placed Russell Smith in his home on the night of October 6, 1960, at 6:00 P.M.” The appellant dismisses the state’s testimony regarding appellant’s admissions as “vague” and “probably not probative of the facts.” He then compares the state’s case with the evidence produced by appellant and concludes that the state failed to show guilt beyond a reasonable doubt and to a moral certainty.

The function of this court, insofar as sufficiency of the evidence is concerned, is to determine whether or not the state’s evidence, viewed in the light most favorable to the verdict, is legally sufficient to induce a belief beyond a reasonable doubt in the minds of jurors of average reason and intelligence. State v. Emrich, Mo.Sup., 250 S.W.2d 718, 725(6-8). We do not attempt to determine whether the charge has been proved beyond reasonable doubt as that is an issue for the jury under proper instructions. State v. Odom, Mo.Sup., 353 S.W.2d 708, 710(2). The recital of the evidence presented by the state leaves no doubt that, if believed, it constituted substantial evidence of the defendant’s guilt.

Related to his contention in this regard is the appellant’s further contention that the state’s case was based upon circumstantial evidence and that such evidence did not exclude every reasonable hypothesis except the guilt of the appellant. However, the state’s case was not based upon circumstantial evidence. There was direct evidence, from Donovan’s identification of his voice (State v. Hall, Mo.Sup., 7 S.W.2d 1001, 1004(2)), of appellant’s presence at the time of the occurrence. Such evidence, coupled with the appellant’s admissions, was sufficient to prove directly the appellant’s guilt. This conclusion also answers appellant’s claim of error in the court’s refusal to instruct on circumstantial evidence. Such instruction is required to be given only in cases based solely on circumstantial evidence. State v. Cox, Mo.Sup., 352 S.W.2d 665, 670(4). Admissions of guilt are direct evidence thereof and make instruction on circumstantial evidence unnecessary. State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227, 231(9, 10).

The appellant urges error on the part of the trial court in refusing to permit the appellant to show that Donovan, for a month prior to October 6, 1960, had demonstrated an improper interest in the girls in the Smith household and had made improper advances towards them and one of their classmates who was a visitor in the home. In connection with the appellant’s opening statement, the court ruled that evidence only of the action of Donovan on the date of the offense would he admitted. An offer of proof of actions on other occasions was made at that time and also in connection with the testimony of the daughters and a schoolmate, Bonnie Sue Carroll. The offer was rejected on each occasion.

The defense in this case was alibi. However, the appellant went further than usual in his attempt at proof of such defense. He not only produced evidence of his absence at the time and place of the crime, but also evidence, by way of her testimony, that his daughter Carolyn actually threw the acid.

The defense against a criminal charge that the act upon which the charge is based was in fact done by another without the assistance or participation of the defendant is recognized. 22A C.J.S. Criminal Law § 622b, page 449; 15 Am.Jur., Criminal Law, Section 331, page 22; Wharton on Criminal Evidence (1.2th ed.), Section 189, page 378. As with any defense, generally speaking, competent evidence having probative value on such issue should be received. Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486; 1 Wigmore on Evidence (3rd ed.), Section 142, page 576.

Under the theory of the defense in this case, the proof of misconduct on Donovan’s part toward Carolyn was a material matter. Her assumption of responsibility for the throwing of the acid was inseparably bound to her charge of Donovan’s misconduct. Therefore, evidence tending to corroborate the fact of Donovan’s misconduct related to a material issue in the case and competent evidence relevant to that issue should have been received. The matter was material because of its tendency to support Carolyn’s version of the event giving rise to the charge by showing of the existence of a motive for her action. Evidence bearing on the matter would also tend to support the appellant’s explanation that he admitted having thrown the acid in order to shield his daughters. Finally, evidence in this regard would also tend to affect Donovan’s credibility by showing that in this case he had particular reason for charging that another committed the offense.

In the final analysis, the admissibility of the evidence offered by appellant and excluded by the trial court must depend upon its relevancy. Of course, the general rule is that evidence of prior acts is not available for proof of the doing of an act in issue. This rule is usually applied in criminal cases to exclude evidence of a separate and independent crime by the accused. See State v. Spinks, 344 Mo. 105, 125 S.W. 2d 60, 63(3); State v. Lebo, 339 Mo. 960, 98 S.W.2d 695, 697(3). However, the basis for exclusion of such evidence in criminal cases is generally not lack of relevancy, but the policy consideration of avoidance of prejudice to the defendant by evidence of offenses other than the one with which he stands charged. State v. Atkinson, Mo.Sup., 293 S.W.2d 941 943(4) ; 1 Wigmore on Evidence (3rd ed.), Section 29a, page 412, Section 55, page 449. The exceptions to that rule, which apply in criminal cases involving sexual misconduct, recognize the relevancy of evidence of prior similar activities on the part of the defendant in such cases.

“Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24. And similarly, the exception is often recognized in prosecutions for crimes involving sexual relations such as adultery, incest, sodomy, seduction, rape and lewdness. State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Henderson, 243 Mo. 503, 147 S.W. 480; State v. Scott, 172 Mo. 536, 72 S.W. 897. In 22 C.J.S. Criminal Law, § 691, page 1160, it is said: 'In the case of crimes involving illicit sexual relations or acts, other acts of the same character may ordinarily be shown, not as proof of independent substantive offenses, but as corroborative evidence to show a disposition upon the part of accused and as tending to support the specific offense for which he is being tried.’ See authorities there cited. See also, State v. Cason, Mo.Sup., 252 S.W. 688, and cases there cited. In State v. King, supra (342 Mo. 975, 119 S.W.2d 283), we held: ‘In these cases (thereinabove cited) prior (and in some jurisdictions, subsequent) acts of the same kind between the accused and the prosecutrix may be proven as corroborative evidence.’ ” State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768. See also, State v. Burkhart, Mo.Sup., 242 S.W.2d 12, 14(4) ; State v. Tyler, Mo.Sup., 306 S.W.2d 452, 457(4); State v. Akers, Mo.Sup., 328 S.W.2d 31, 33(4, 5) ; State v. Atkinson, Mo.Sup., 293 S.W.2d 941, 944(5).

Although evidence of prior activities is generally limited in such cases to evidence of relation between the prosecuting witness and the defendant, the exclusionary rule is based upon the policy above referred to, and not upon lack of relevancy. See State v. King, 342 Mo. 975, 119 S.W.2d 277, 283(11); State v. Atkinson, supra.

Under the foregoing authorities, we conclude that evidence of prior misconduct on the part of Donovan of the nature of that of October 6 with which Carolyn charged him would tend to show a disposition on his part to commit such act. Evidence, limited reasonably in time, of prior acts towards members of the Smith household, was, therefore, relevant.

Unless forbidden by an exclusionary rule, relevant evidence should be admitted. State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333(7). The above-mentioned policy, which excludes evidence of prior acts in criminal cases, is not here involved, and, therefore, exclusion on such basis would not be authorized. The policy which Sometimes is applied of excluding evidence in order to avoid confusion of issues would likewise not be applicable, inasmuch as the issue of Donovan’s misconduct was necessarily injected by Carolyn’s testimony. Finally, insofar as this testimony would tend to impeach Donovan’s credibility, it would not be subject to exclusion as an effort to evidence character by specific acts. Rather, it would tend to establish facts in this particular case which would shed light on the credibility of Donovan’s testimony. McHugh v. State, 31 Ala. 317, 320; 3 Wig-more on Evidence, Section 943, page 494.

We conclude that the offered evidence was relevant and that its admission was not precluded by any exclusionary rule. Therefore, the trial court erroneously excluded it and for such error the judgment must be reversed and the case remanded. Because other matters here assigned as error may not recur in a new trial, we will not now consider them.

The judgment is reversed and the cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Ben ADELSTEIN, (Plaintiff) Appellant, v. JEFFERSON BANK AND TRUST COMPANY, a Corporation, (Defendant) Respondent.
    No. 49957.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Bernard Susman, St. Louis, Melvin L. Hertzman, St. Louis, of counsel, for appellant.
    James K. Cook, Schuchat, Cook & Wer-ner, St.' Louis, for defendant-respondent.
   HOLMAN, Judge.

In Count I of his petition plaintiff alleged that defendant stole $2,500 from his account and maliciously refused to restore said sum upon his demand that it do so. In that count he sought actual damages in the sum of $2,-500 and punitive damages in the sum of $50,-000. In Count II plaintiff alleged that on October 5, 1960, defendant refused to pay a check he had drawn in the sum of $2,541.-99, even though he had in excess of that amount on deposit with it subject to his check. He prayed judgment in the sum of $2,541.99 in said count. Prior to trial the court sustained defendant’s motion to strike from the prayer the plea for punitive damages. The trial resulted in a verdict for defendant. Plaintiff has appealed. We have appellate jurisdiction because the amount in dispute is more than $15,000.

Plaintiff testified that his principal business was the .operation of the L S Bed and Spring Company located at 2033 Franklin in St. Louis; that in 1958 he opened a personal account at the Jefferson Bank and Trust Company and that account was used for the transaction of both his personal and business matters. In the transaction of his business with defendant he would go to the bank once or twice a week and would usually go to the drive-in window at which Jim Fritschie was the teller; that he and Fritschie were friendly and did business on a first-name basis.

Mr. Adelstein further testified that in May 1960 he and John Hemphill, Jr., formed a corporation called the “Hemphill Wrecking Company” for the temporary purpose of wrecking certain houses for the City of St. Louis; that each of them invested approximately the same amount of money in the corporation; that the records of the company were kept in his office at the L S Bed and Spring Company; that it was his duty to keep the books of the corporation and also supervise and handle anything that had to be done in the field; that it was Hemphill’s job to operate the wrecking operations; that their agreement was that neither would be paid any salary and that they would divide the profits equally; that •on August 25, 1960, the wrecking operations had been completed and he and Hemphill spent the day in the office of their attorney working out a final settlement of their operations and arranging for the dissolution of the corporation; that it was agreed that Hemphill was entitled to $2,500 as his final share of the profits but that the corporate account in defendant bank on that date had a balance of only 64 cents; that a check was written on the corporate bank account for $2,500, payable to John Hemp-hill, Jr., which was endorsed on the back by the payee; that another check was written on plaintiff’s personal account for $2,500, payable to the Hemphill Wrecking Company, which was endorsed on the back as follows: “John Hemphill, Jr., O. K. Ben Adelstein”; that when he went to the bank later that day with the two checks he intended that his personal check for $2,500 be deposited in the corporation account and the other check for $2,500 be cashed; that he did not intend to obtain $5,000 in cash. He further stated that at about 4:30 p.m. on that day he drove to the defendant bank, with Hemphill in the front seat with him, and drove up to the window at which Jim Fritschie was the teller; that when the teller’s drawer was extended he put the two checks and a deposit slip into the drawer;, that when the drawer “went in” Mr. Frit-schie picked up the papers and “asked me how I wanted it and I said, ‘in large bills’ ”; that Jim then placed a couple of rubber bands around a package of bills and placed it in the drawer; that the drawer was extended and he took the package of bills out: of the drawer and tossed it to Mr. Hemp-hill and they drove away; that he has no. recollection as to whether he received a deposit receipt but he has made a search and has been unable to find any; that he could remember no prior occasion when he failed to receive a deposit slip when he made a. deposit; that he did not count the money handed to him by Mr. Fritschie.

James Fritschie testified that he was a, drive-in teller for defendant bank; that the drive-in glass window has no opening, but a. drawer extends and retracts for use of the customers; that he had known plaintiff for three years; that plaintiff was a regular customer and he knew him on a first-name basis and had sufficient confidence in him that for the past year he had cashed his checks without checking his account; that the account of Hemphill Wrecking Company was handled in the same manner; that on August 25, 1960, plaintiff drove up to his window and he noticed another person in the car whom he did not know but later learned was Mr. Hemphill. He stated that when the drawer was retracted there were two checks in it for $2,500 each, but no deposit slip; that he asked the plaintiff how he-wanted the money and plaintiff said he wanted “as much in large bills as I had”; that he assembled a package of bills containing-$5,000 and after putting two rubber bands around the package, placed it in the drawer and extended the drawer out; that Mr. Adelstein then took the money out of the drawer and handed it directly to the gentleman seated on his right and they drove away. He further stated that the following Monday morning the bookkeeper called and advised him that there were not sufficient funds in the Hemphill Wrecking Company account to pay the check which he had cashed; that he suggested to the bookkeeper that it was probably a simple mistake and suggested that she call plaintiff; that about 20 minutes later plaintiff "called me up, and he asked me what had happened, and I told him I had cashed the two checks, but the one drawn on the Hemphill Wrecking Company was insufficient, and then at that time, he informed me that he had meant for his personal check to be deposited to the company account, in order to cover the Hemphill Wrecking Company check.” Mr. Fritschie also identified the machine tape of his transactions on the day in question and it showed that two $2,500 checks were cashed at the same time, and showed only one $2,500 deposit that day which, according to other evidence, was made by Staten Island Cleaners.

On cross-examination this witness conceded that plaintiff could have placed a deposit slip in the drawer and the wind could have blown it out. However, in that connection, on redirect-examination, he stated that always in the past when the wind blew anything out of the drawer either the teller or customer saw it and "there had never been any mishap because of it.”

Joseph McConnell, executive vice president of defendant bank, produced various records in connection with the two accounts heretofore mentioned and testified that withdrawals from the Hemphill Wrecking Company account were to be made upon the joint signature of plaintiff and Hemphill; that he learned of the incident in question on Monday, August 29, and that he, plaintiff, and Mr. Fritschie had a conversation about the matter at the bank at that time. “Mr. Adelstein advised me as to what had happened, and I asked him, 'where is your receipt for this deposit,’ and he said ‘I don’t have any.’ My next question was, ‘where is the receipt that you got from the drive-in teller.’ He said ‘I don’t know whether I made out a deposit or not.’ He said, ‘I was so mixed up and excited, I don’t know whether I made one up or not.’ He said ‘I don’t have a receipt for the deposit.’ * * * At the same time I asked him what in the world happened to cause a situation like this, and he said, ‘I think that Hemp-hill took me’ and, well, that was it.” Mr. McConnell further testified that on that morning, in the presence of plaintiff, he issued an order to charge the “insufficient funds” check of the corporation against plaintiff’s personal account; that on October 5, 1960, the bank refused payment on a check for $2,541.99 drawn by plaintiff on his personal account because, at that time, plaintiff’s balance was $41.99; that payment was refused upon another check in the amount of $2,512.56, dated October 20, 1960, drawn upon plaintiff’s account, because at that time the balance in his account was $95.36.

Apparently the two checks mentioned in the preceding paragraph were written and presented in order to lay the groundwork for the present suit as plaintiff testified that he knew the $2,500 corporation check had been charged against his account and, in view of that charge, knew that when he wrote the aforementioned two checks they would not clear. Plaintiff also admitted that he had at one time reported to the police that Hemphill had taken the money— stolen over $50.00.

In rebuttal plaintiff called John Hemp-hill, Jr., who testified briefly. He stated that he was in the automobile with plaintiff on August 25, and that plaintiff had tossed him the package of money; that he didn’t count it but took it home and gave it to his mother; that his mother told him that the package contained $2,500.

Plaintiff’s main contention is that the court erred in giving Instruction No. 3 at the request of defendant. It reads as follows :

“If you find and believe from the weight of the credible evidence that late [in] the afternoon on August 25, 1960, plaintiff (Mr. Adelstein) presented the two checks for $2,500.00 each received in evidence in this case, one check written on the account of Ben Adelstein payable to Hemphill Wrecking Company, Inc. and endorsed on the back by John Hemphill, Jr. and Ben Adelstein, and one check written by Hemphill Wrecking Company, Inc. payable to the order of John Hemphill, Jr. and endorsed on the back by John Hemphill, Jr., to defendant’s teller Jim Fritschie; and
“If you find that Mr. Adelstein was Secretary-Treasurer of Hemphill Wrecking Company, Inc. and that Mr. Adelstein knew, according to the records of that company’s bank balance, which he kept, that there was not sufficient money in that company’s bank account to pay the aforesaid check written on the account of Hemphill Wrecking Company, Inc. for $2,500.00 unless a deposit of almost $2,500 were made to the bank account of the Hemphill Wrecking Company, Inc. ; and
“If you find and believe from the weight of the credible evidence that defendant’s teller Jim Fritschie cashed both of said checks and gave to Mr. Adelstein the sum of $5,000 for them; and
“If you find and believe from the weight of the credible evidence that, even though plaintiff may have intended to deposit the said check payable to Hemphill Wrecking Company, Inc. to said company’s account and to have teller Jim Fritschie cash only the said check payable to John Hemphill, Jr., if you so find, and
“If you find that plaintiff knew, or should have known that defendant’s teller paid him $5,000.00, if you so find, either by counting the money paid to him by said teller or by securing a deposit receipt for the $2,500 check plaintiff may have intended to deposit, if you so find; and
“If you find that plaintiff Mr. Adelstein: did not count the money paid to him by said teller, and if you find that plaintiff did not receive a deposit receipt, if you so find,
“Then defendant Jefferson Bank and Trust Company had the right to charge plaintiff’s personal bank account for the $2,500.00 paid to plaintiff by teller Jim Fritschie as the proceeds of the check drawn on the account of Hemphill Wrecking Company, Inc., if you so find that such money was paid to plaintiff;
“Then plaintiff is not entitled to recover and your verdict must be in favor of defendant Jefferson Bank and Trust Company.”

That instruction is in accord with defendant’s theory of the case which is that when it cashed the corporate check and paid the proceeds to plaintiff, plaintiff became indebted to it in the sum of $2,500 and it had the right to deduct that amount from plaintiff’s personal account as a setoff against that indebtedness.

Plaintiff says that the giving of the instruction was error because there was no evidence that the money was paid to plaintiff. In that connection we note that it is admitted that plaintiff actually picked up the package of money out of the drive-in teller’s drawer. What plaintiff really contends is that since the check was made payable to Hemphill and endorsed by him, and since plaintiff immediately handed the money to Hemphill upon picking it up, such could not constitute payment to plaintiff. Stated another way, plaintiff contends that he was a mere conduit through which the money passed from the bank to Hemp-hill. We do not agree. The check had been endorsed in blank by Hemphill and hence was payable to bearer. Section 401.034, RSMo 1959, V.A.M.S. Plaintiff had possession of the check and placed it in the drawer. When the teller asked how he wanted the money he stated (without consulting Hemphill), “in large bills.” After the drawer was extended again plaintiff picked up the money. Those are certainly sufficient facts from which a jury could reasonably have found that the money was paid to plaintiff.

It is also contended by plaintiff that the instruction is erroneous because it tells the jury, upon a finding of the facts hypothesized therein, that defendant “had the right to charge plaintiff’s personal bank account for the $2,500 paid to plaintiff * * He contends that (under the circumstances of this case) no factual situation could have authorized defendant to make such a charge against plaintiff’s personal account except the authentic order of plaintiff.

We have concluded that a finding that plaintiff received the money under the circumstances hypothesized in the instruction would make plaintiff a debtor of defendant in the amount of $2,500 and therefore defendant had the right to set off the amount of that debt against the amount in the personal account of plaintiff. The money was paid by defendant and accepted by plaintiff as the result of a mutual mistake. As stated in defendant’s brief, “the mutual mistake was that of the teller and plaintiff in assuming that there were sufficient funds in the corporation account, although each had different reasons for the mistaken assumption. The teller assumed the check was good because of his confidence in and past dealings with plaintiff. Plaintiff assumed the check was good because he believed he was making a deposit to cover the check.”

In a case involving the payment of a draft by mistake, this court said long ago that if “the money is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying had been in omitting to use due diligence to inquire into the facts.” Koontz v. Central National Bank, 51 Mo. 275, 278. See also Bankers Trust Co. v. United States Register Co., 200 Iowa 1014, 205 N.W. 838, and Prowinsky v. Second National Bank (Dist. of Columbia), 49 App.D.C. 363, 265 F. 1003, 12 A.L.R. 358.

“As a general rule a bank may look to deposits in its hands for the repayment of any indebtedness to it on the part of the depositor and may apply the debtor’s deposits on his debts to the bank as they become due * * *. [Sjuch right grows out of the debtor and creditor relation subsisting between bank and depositor, and finds its basis in the right of setoff, and in the application of equitable principles.” 9 C.J.S. Banks and Banking § 296, pp. 614, 615. Plaintiff has cited the case of O’Grady v. Stotts City Bank, 106 Mo.App. 366, 80 S.W. 696, which holds that a bank has no right, without a depositor’s consent, to apply his deposit to the payment of a check of a third person which the depositor guaranteed. That is not the situation here. However, we note that the O’Grady case approves the rule that “it is the right of the bank, in case the depositor becomes indebted to it by note or otherwise, and the deposit is not specially applicable to a particular purpose, or there is no express agreement to the contrary, to apply a sufficient amount thereof to the payment of any debt due and payable from the depositor to the bank.” (Italics ours.) 80 S.W. 697.

Plaintiff also states that the instruction is erroneous because it permits the debt (overdraft) of the corporation to be charged to the personal account of a stockholder and officer thereof. That is said to be contrary to the basic principle that a corporation is a distinct entity and that stockholders are not ordinarily liable for the corporate obligations. There is no question but that the principle stated in the preceding sentence is correct. The difficulty with plaintiff’s contention is that the amount here in question was not charged to plaintiff’s personal account because he was a shareholder and officer of the corporation. It was so charged because he received the $2,500 when the check was cashed under the circumstances hypothesized in the instruction. This point is without merit.

In further support of his contention that the instruction is erroneous plaintiff has cited the case of Farmers State Bank v. Jones, 34 Tenn.App. 57, 232 S.W.2d 658, which holds that a bank does not have the right to apply the personal account of a partner to a partnership note. That ruling may or may not be sound, but it certainly has no application to the situation before us.

Plaintiff’s final contention of error in regard to Instruction No. 3, and his entire argument supporting same, is quoted from his brief, as follows: “The inclusion in the instruction of the charge that ‘if you find that plaintiff knew, or should have known that defendant’s teller paid him $5,000 if you so find, either by counting the money paid to him by said teller or by securing a deposit receipt for the $2,500 check plaintiff may have intended to deposit * * * plaintiff is not entitled to recover’ was erroneous, incorrect and was bound to confuse the jury, regardless of whether or not plaintiff knew that $5,000 was included in the amount handed to him by the teller. Legally the bank had no right to charge the personal account of plaintiff with the overdraft of the account.” This point adds nothing to the contentions heretofore discussed. It merely reiterates the contention that defendant had no legal right to charge plaintiff’s personal account with the amount of the check. This contention is overruled.

While Instruction No. 3 may have hypothesized more facts than was required, and should not be used as a model in future cases, it does clearly hypothesize the facts required to be found in order to justify defendant’s action in charging plaintiff’s account with the amount of the check. As heretofore indicated, we rule that it was not prejudicially erroneous for any of the reasons stated in the plaintiff’s brief.

The remaining point briefed by plaintiff is that the trial court erred in striking the prayer for punitive damages from his petition. We need not determine that contention because the ruling could not be considered as prejudicial to plaintiff. This for the reason that actual damages must be found as a predicate for the recovery of punitive damages. Carnes v. Thompson, Mo.Sup., 48 S.W.2d 903; Thompson v. Hodge, Mo.App., 348 S.W.2d 11. Since the jury in this case found for defendant and, of course, allowed plaintiff no actual damages, it could not have allowed plaintiff any amount for punitive damages even if the prayer for such had not been stricken from the petition and the issue had been submitted to the jury. As stated, plaintiff could not have been prejudiced by the ruling complained of.

The judgment is affirmed.

All concur.