141; Hays v. Railway, 182 Mo. App. loc. cit. [ jury in arriving at their verdict wholly disre403, 170 S. W. 414; Clark v. Long (App.) 196 garded the instructions given by the court." S. W. loc. cit. 412; Ganey v. Kansas City, 259 Mo. loc. cit. 660, 661, 168 S. W. 619.

[13] VI. Defendant's final contention is that the verdict is excessive. With respect to the nature and extent of plaintiff's injuries and loss of earning power, his testimony showed the following: That he sustained a broken jaw, five or six teeth knocked out, a broken chest, and his legs were [10, 11] Defendant next claims that- hurt; that as a result of his injuries he had The court erred "in refusing to sustain the been unable to do any work for more than motion for new trial on the grounds that the 2 years, that his chest pained him, his legs verdict and judgment are contrary to the great-ached, and when "I bend over my head beer weight of the evidence, and because the gins to roar and gets dizzy"; that one side

(232 S.W.)

of his jaw was higher than the other; that [nervous complaints, or dizziness, headiness, not until about August or September, 1918, and headache occasionally"; that "in stoopwas he again able to work, and he then se- ing he seems to lose control of equilibrium to cured employment at Morris & Co., putting some extent." Asked to explain this latter, sacks on beef, but could only work "a day or the witness said: two and have to rest a day."

Dr. H. L. Regier, police surgeon, of Kansas City, Kan., a witness for plaintiff, testified that he saw plaintiff the night of the accident at St. Margaret's Hospital, Kansas City, Kan.; that he was unconscious, bleeding from the ear, had a broken lower jaw, some teeth knocked out, and was bloody; that "I took for granted, while I wasn't quite sure, on account of him bleeding from the ear, that he must have had a fracture of the base of the skull;" that the principal thing witness did was to wire his lower jaw; that he "didn't entertain the idea" that plaintiff was under the influence of liquor. Witness stated that he did not remember having told claim agent Frank Wisdom that he found plaintiff under the influence of liquor.

"When you get a fracture of the base of the skull, or the fracture of any bone, you get a union of the bone, you get a deposit of the bone or bony tissue at the line of union. Part of that could be explained by the increased pressure from this deposit, and then the fact that he had a hemmorhage at the ear would indicate that this fracture at the base of the circular canals which are located near the middle ear, and in these canals are nerve substances that has to do with equilibrium."

skull extended into what is known as the semi

Asked if this condition in plaintiff was permanent, the witness replied, "Yes, sir." Over the objection of counsel for defendant, in response to a question as to whether or not plaintiff could do "manual labor requiring that he stoop over," witness replied, "No; he can't do that kind of work; it would be dangerous." Being further examined, without objection by defendant, witness testified:

he was working, he couldn't do that kind of "Q. Explain why not, Doctor? A. Well, if work, especially if he had to work off the ground or around machinery, for fear of falling into machinery or falling from any scaffold that he might be working upon."

Witness stated that the amount of his bill was $185.

Defendant offered no evidence with respect to the injuries sustained by plaintiff, or relative to impairment of his earning power.

Dr. C. E. Sanders, physician and surgeon, a witness called by plaintiff, testified that he first attended plaintiff at St. Mary's Hospital, Kansas City, Mo., three days after the accident; that plaintiff was then under his care "continuously up until about the 4th or 5th day of May. I saw him every day, and then after that he came to the office about every second or third day until the middle of June, and then I have seen him up to the time I went into the service (July, 1918), on an average of about once a month"; that plaintiff had a compound fracture of the lower left jaw, a fracture at the base of the skull, several teeth loosened, with three or four knocked out, and numerous bruises; that he had hemorrhage from the ears and from the nostrils, dilated or irregular pupils, a tooth driven into the bone of the lower jaw, and a little piece of bone broken off the upper jaw; that infection set in in the jaw; that the condition of the fracture of the skull was "always very serious, and the outcome questionable, and in Julius' case I figured he had a 50-50 chance"; that they wired plaintiff's lower jaw to the upper jaw and fed him through a tube through an opening in the front teeth for four or five weeks. The witness further stated that about a week before the trial he had examined plaintiff, and found that the union of the bone of the jaw was not in perfect apposition, "one fragment is a little higher than the other fragment, which throws his teeth out of line," one side being between an eighth and a quarter of an inch below the other and the two not touch-pacity. ing; that he "has a discharging abscess from Accordingly, if plaintiff will, within the the gum; quite a little infection next ten days, remit the sum of $4,000, so as around a good many of his teeth, * *to reduce the judgment to $11,000, the same is extremely nervous; has exaggerated re- will be affirmed as of the date thereof; othflexes, the patella reflexes, which shows an erwise, the judgment will be reversed, and extreme irritability of the cerebrospinal can- the cause remanded for a new trial. al, that is, the spinal cord; his symptoms are

From the evidence it may fairly be deduced that plaintiff suffered severe pain, that the usefulness of his teeth has been seriously impaired, and that there is more or less permanent impairment of his capacity for manual labor. However, when measured by the standards applied by this court in numerous cases, the verdict seems to us to be excessive. Prior to the accident plaintiff was earning, at $11 per week, $572 per annum. During the 21⁄2 years subsequent to his injury, when he claims to have been unable to work, he would have earned $1,430. The charge which he sustained for surgical and medical attention was $185, making a total loss to him, independent of pain and suffering, of $1,615. $11,000, less the $1,615 loss suffered, would leave $9,385. This amount, invested at 6 per cent., would produce an annuity of $563, or within $9 of his total normal earning ca

All concur.

(288 Mo. 505)

CITIZENS' TRUST CO. v. GOING. (No. 22632.)

(Supreme Court of Missouri, Division No. 2. June 23, 1921.)

1. Action 36-Equitable defenses without prayer for affirmative relief do not convert action at law into one in equity.

Where the action is at law, being on a note, though the defenses thereto may to a certain extent be equitable in form, interposition of such defenses, in the absence of a prayer for affirmative relief based thereon, does not convert the action into one in equity.

2. Jury 13 (18)-Answer raised questions of fact for jury in action at law.

In an action at law on a note, where the answer alleged that the proceeds of the note had been diverted from its purpose or transferred to another without authority, and that defendant had derived no benefit therefrom, also that the note was given for a specific purpose with the knowledge or approval of the officials of the payee bank, and that a certain company, and not defendant, was in fact the maker and real beneficiary, etc., such answer raised questions of fact for the determination of the jury.

had been paid, and plaintiff receiver cannot recover, held proper.

7. Banks and banking 77(6)-Defense of estoppel against receiver of payee bank through statements of its officers a jury question.

In an action on a note brought by the receiver of the payee bank, defense of estoppel against the receiver through statements by officials of the payee bank that, if defendant maker released his claims to certain land and recovered it for a lumber company, the bank would release him on the note, held for the jury under the evidence.

8. Banks and banking 77(6)-Instruction erroneous as eliminating question as whether or not proceeds of defendant's note diverted.

In an action on a note brought by the receiver of the payee bank, plaintiff's requested instruction that, if the draft issued by defendant maker, in favor of the party who held title to certain Arkansas land, in payment of the purchase price of the same by a lumber company, was paid out of the funds of the payee bank, and not derived from the proceeds of defendant maker's note, then defendant had no such interest in the land as would give him a lien thereon, held incorrect in that it eliminated from the consideration of the jury the question 120-Instruction embracing de- as to whether or not the proceeds of defend

3. Estoppel
fense of estoppel proper.

In an action by a bank's receiver on a note given it by defendant, defendant's instruction, embracing the defense of estoppel, that if the agents of the payee bank led defendant to believe that, if he released his claims to certain land and recovered it for a lumber company, the bank would release him on the note, etc., held proper.

4. Banks and banking 102-Courts require those dealing with bank officers to take notice of limitations on powers, but rule does not preclude officers from pursuing ordinary business course.

Though courts require those who deal with bank officers to take notice of the limitations which the law places upon their powers, this does not preclude such officers from pursuing such a course as should characterize every possible transaction, whether performed individually or in their representative capacity. 5. Mortgages 295 (1)-Conveyances of fee by mortgagor to mortgagee ordinarily results in merger.

Ordinarily a conveyance by a mortgagor to the mortgagee of the fee in the mortgaged lands results in a merger of the legal and equitable titles and results in the satisfaction of the entire debt secured by the mortgage.

6. Banks and banking77(6)-Instruction on satisfaction of indebtedness by maker proper.

In an action on a note brought by the receiver of the payee bank, in view of substantial evidence on which to base such a finding, instruction that, if defendant maker conveyed his entire interest in property for the consideration of a release, settlement, and satisfaction of all his indebtedness to the payee bank, the debt

ant's note had been diverted from the purpose for which it had been made.

9. Banks and banking 77(6)-Instruction unauthorized by any issue.

In an action on a note brought by the receiver of the payee bank, plaintiff's requested instruction that, if the directors of the payee bank had no knowledge that defendant's note was held by the bank, then they were not required to notify him that it had not been paid, and plaintiff receiver was not estopped by reason of such failure of notice, held unauthorized by any contested issue.

10. Banks and banking77(6)-Instruction erroneous as ignoring material facts of defense.

In an action on a note brought by the receiver of the payee bank, plaintiff's requested instruction that, if the payee bank had been placed in the hands of the bank commissioner prior to the time defendant maker alleged the contract was entered into between him and officials of the bank, whereby defendant was relieved from paying the note, then such officials had no authority to make such contract, held erroneous and properly refused as ignoring material facts on which defendant maker based his defense.

11. Appeal and error 889 (3)-Action

note treated as if amendment by defendant to admit proof of payment had been made.

In an action on a note brought by the receiver of the payee bank, where leave was given to defendant maker to amend so as to admit proof of payment of the note, but the amendment was not made at the time, though proof was offered as if the amendment had been made, the case will be treated as though the amendment had actually been made.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

12. Payment 63(3)-Fact of payment of ordinary money demand inadmissible under simple denial.

In an ordinary money demand, the fact of payment is in the nature of new matter inadmissible under a simple denial.

was made upon him for its payment; that but for the conduct of the bank the defendant could and would have proceeded to enforce the payment of the note given to him by the lumber company which was then solvent, but which subsequently became bankrupt. That by reason of the foregoing facts,

Appeal from Circuit Court, Dunklin Coun- the bank as well as the plaintiff, its receiver, ty; W. S. G. Walker, Judge.

is estopped from prosecuting this cause. That in June, 1913, the Pemiscot County Bank was found to be insolvent and was taken in charge by the state banking department, and later was placed in the hands of two of the bank's directors as trustees. That it was then discovered that Tindle, its former cashier, owed the bank large amounts of money, and in an effort to pay the same he

transferred to one of the said trustees much

personal and real property, among which was

the stock of the Pemiscot Lumber Company. That preparatory to the conveyance of this property to the trustees for the bank the defendant was employed by said trustees to represent the bank in said conveyance. That it was discovered that about 1,500 acres of land in Arkansas had been purchased by the lumber company, but that the deeds thereto had been taken in the name of Tindle and one Elder, and that Tindle had conveyed all of said lands to Elder, and that the title to same was in him. That these lands included the half section which had been paid for with the proceeds of the note given by the defend

ant to the bank. That the trustees there

WALKER, J. The receiver of the Pemiscot County Bank brought this suit in the circuit court of that county to enforce the payment of a promissory note for $6,000 made by the defendant, Going, to said bank. The answer admits the execution of the note, but pleads in defense estoppel, settlement, and payment. There was a verdict for the defendant, and from the judgment rendered thereon the plaintiff appealed to the Springfield Court of Appeals, which affirmed the judgment of the circuit court. 224 S. W. 1019. One of the judges of the Court of Appeals dissented on the ground that the majority opinion conflicted with certain rulings of the Supreme upon employed defendant to divest Elder of Court and certified the case here for review. his title to said land and vest the same in The following facts are pleaded in the an- trustees for the bank and, that said service swer: The making of the note is admitted, was successfully performed by the defendand that when it was executed and prior ant. That before this was effected defendant thereto one A. C. Tindle was the cashier of informed both of the trustees for the bank the Pemiscot County Bank and was also the that the proceeds of his (defendant's) note, president of the Pemiscot Lumber Company, which is now being sued on, had been used to an Arkansas corporation. Defendant was pay for the half section of the land for the the attorney for the lumber company. At lumber company, and notified them of his Tindle's request defendant executed the note intention to have an equitable lien declared for $6,000 to the bank, the proceeds of same against said land to protect him from the to be used in the purchase of a tract of land payment of said note. That said land was in Arkansas, and in turn Tindle agreed to worth at the time more than the amount due and did execute a note for a like amount by on said note. That the said trustees, as the lumber company to the defendant to se- agents for and representatives of the bank, cure him against loss on account of the note then and there agreed with the defendant given by him to the bank. At Tindle's re- that in lieu of the satisfaction of his note quest, the bank discounted defendant's note they woud take, accept, and receive for the to provide funds to purchase for the lumber bank the title to said half section of land, company a half section of land in Arkansas, and, in pursuance of this agreement, defendwhich was the purpose for which the note ant abandoned his right to enforce his lien had been given, The proceeds arising from against said land, and caused the title to this transaction were placed by the bank to same to be vested in the trustees for the the credit of the lumber company, and de- bank, and abandoned his right to proceed fendant received no part of same. With these against the lumber company on the note given proceeds the lumber company paid for the by it to him to protect him against the payland, and defendant's note was regarded by ment of the note sued on; that the bank, the bank as the note of the lumber company. after securing the title to the half section of 'Defendant was not notified by the bank that land aforesaid by silence and acquiescence, the note had not been paid, and no demand lulled the defendant into a sense of security

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

until after the title to the half section had been adjusted, the lumber company had gone into bankruptcy, and the half section of land was listed as a part of the company's assets, when the bank sought to hold said land as a preferred creditor for the satisfaction of the note it is now seeking to compel the defendant to pay. That by reason of said facts plaintiff is barred and precluded in good conscience and in equity from maintaining this action.

The reply denies the new matter, and that the representatives of the bank did not make

the agreement to release the defendant's note, and, if such agreement was made, it was void for lack of authority, because the bank had failed and its affairs were in the hands of the State Bank Commissioner.

It was admitted that the plaintiff trust company was the receiver of the bank, and that it sued as such.

Minor v. Burton, 228 Mo. loc. cit. 563, 128
S. W. 964.

In the Lee-Conran Case, the distinction between the two classes of cases as regards the right of trial by jury is thus defined:

"If the issue joined entitled the parties to an ordinary judgment at law, then, under the Constitution and the laws of the state, the parties are entitled to a trial by jury; but, if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor."

In that case the action was one at law.

The answer, among other defenses, as at bar, pleaded estoppel. This was held in the absence of a prayer for affirmative relief, not to convert the action into one in equity.

In the Toler-Edwards Case we said fur

ther in this regard:

"It has long been settled in this state that a Plaintiff introduced the note and rested. purely legal action, such as ejectment, is not Defendant testified along the lines of and interposition of equitable defenses thereto, unconverted into one in equity simply by the insupport of his answer. In addition he in- less there is a prayer for affirmative relief troduced in evidence contracts, deeds, etc., based on those defenses." from Tindle to one of the trustees of the bank to show that the note sued on had been paid by Tindle. Tindle's deposition was read on behalf of the defendant and supported the latter's testimony. testimony. Among other things, Tindle stated that he explained the transaction in regard to the making of the two notes to both of the trustees, as representatives of the bank, one of which was then a director and the other the president of the bank, and told them the purpose for which the note sued on had been given by the defendant, the same being to enable him (Tindle) to secure $6,000 in cash for the Pemiscot Lumber Company to apply on the payment of the half section of land. Tindle's deposition corroborated the testimony of the defendant in other particulars, which, if necessary to be stated in detail, will be found in the opinion. The trustees denied that they had made any agreement with the defendant releasing the note sued on, but admitted that defendant assisted them in removing the cloud from the title to the half section of land to which Elder held the deed. They also denied that defendant's note was satisfied by the settlement made by them with Tindle for the bank.

[1] I. It is contended that the circuit court erred in submitting this case to a jury. The action was at law. The defenses thereto may to a certain extent be equitable in form, but the interposition of an equitable defense in the absence of a prayer for affirmative relief based thereon does not convert the action into one in equity. This ruling has been attested in numerous cases. Hayes v. McLaughlin, 217 S. W. loc. cit. 264; Koehler v. Rowland, 275 Mo. loc. cit. 581, 205 S. W. 217, 9 A. L. R. 107, and cases; Toler v. Edwards, 249 Mo. loc. cit. 168, 155 S. W. 26; Lee v. Conran, 213 Mo. 404, 111 S. W. 1151;

[2] An epitome of the defenses pleaded in the answer will demonstrate whether any equitable right was thereby sought to be established or if a demand was made for the application of an equitable remedy. The answer alleged that the proceeds of the note had been diverted from its purpose or transferred to another without authority, and that the defendant had derived no benefit therefrom; that the note was given for a specific purpose with the knowledge and approval of the bank officials, and that the Pemiscot Lumber Company was, in fact, the maker and the real beneficiary; that the note had been paid by Tindle, and, if not paid, that it had been settled in the surrender by defendant to the bank of the note for a like amount which had been given to him by the lumber company. These were questions of fact for the determination of the jury in an action at law, and we therefore overrule the plaintiff's contention.

II. Error is assigned in the refusal of the trial court to give a peremptory instruction to the jury to find for the plaintiff. To have authorized an instruction of this character, it would have been necessary to have ignored substantial testimony that the note was given by defendant for a specific purpose to the bank, and that the proceeds arising therefrom were not so used; and it would also have been necessary to have ignored the further proof that the note had been paid in Tindle's settlement with the bank. It will suffice to say, in view of these facts, that the seriousness of plaintiff's contention may well be questioned, and we therefore hold that the court below ruled rightly in this regard.

[3] III. Complaint is made of the giving at the instance of the defendant instruction numbered 12, which is as follows: