* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1029, n. 30; Evidence, 22CJ, p. 1019, n. 4; Trial, 38Cyc, p. 1518, n. 69; p. 1521, n. 84. This is an action for money had and received. The cause was filed in Carter county and the venue changed to Wayne county where a jury trial resulted in a verdict and judgment for defendant. Motion for a new trial was filed and overruled, and plaintiff appealed.
The petition states a cause of action for money had and received. The answer put in issue the material allegations. Several separate assignments are made, but these may be considered under two heads, viz.; that error was committed in the admission of evidence and in giving an instruction requested by defendant.
C.D. Sheets was cashier of plaintiff bank from March, 1920, until January, 1924, and was also treasurer of defendant school district from the fall of 1920 until August, 1923. Sheets kept the account of defendant district in plaintiff bank, but in his own name and not in the name of the district. When he retired as treasurer of defendant he was indebted to it in the sum of $417.07. January 12, 1924, a few days prior to his retiring as cashier of plaintiff bank, Sheets as cashier of plaintiff drew a draft on the State Bank of Poplar Bluff in favor of the Bank of Ellsinore for $417.07, and delivered this draft to W.S. Perrin, cashier of the Bank of Ellsinore. At that time the Bank of Ellsinore was the depository of defendant school district, and when Sheets handed the draft to Perrin he, Sheets, told Perrin that the draft was for defendant district. Perrin entered the draft as a deposit to the credit of defendant district, and delivered the deposit slip to Sheets. Plaintiff bank had an account with the State Bank of Poplar Bluff and when the draft reached that bank it was paid and charged to plaintiff's account. Sheets testified that *Page 1315 on January 23, 1924, he charged the draft to the account of the defendant district, that is to the account which on the books of the bank was in his own name, but which was in fact the account of defendant district according to his evidence.
Sheets claimed that when this draft was charged it balanced the account of defendant district, and that because the account was closed he took out of the loose leaf ledger the various sheets of the school district's account and put them in a drawer with other closed accounts. Sheets ceased to be cashier of plaintiff bank on January 25, 1924, but before he went out of the bank he claims to have made an exact copy of the account of defendant district. What became of the original no one was able to say. Sheets claims to have left the sheets of the original account in the desk with other closed accounts, but those who took over the bank were not able to find this account.
The court admitted in evidence the copy of the account which Sheets made and this is the evidence complained of. This copy shows that when the draft was drawn there was a balance of $417.07 in what Sheets says was the school district account and if the copy was correct, and the account was in fact the account of defendant, then plaintiff bank was indebted to defendant to the amount of the draft. That the proper foundation was laid for the admission in evidence of the copy of the account can hardly be questioned, and we think it was properly admitted. [Bird v. Fox, 193 S.W. (Mo. App.) 941; 22 C.J. 1018.] There is in the record considerable evidence of facts and circumstances which tend strongly to discredit Sheets, but the jury was the sole judge of the credibility and weight of his evidence.
Defendant's instruction No. 4 is challenged. After other directions, not necessary to here mention, this instruction told the jury that if they found that the "draft was paid out of funds belonging to said defendant school district," to find for defendant. The point made is that there was no evidence to show that the draft was paid out of funds belonging to the school district. It is true that the draft was not paid out of funds belonging to the defendant district, but it was paid in the usual way, and by the State Bank of Poplar Bluff with which plaintiff bank had an account to its credit. And if the plaintiff bank owed defendant district the amount of the draft, and the jury so found, then there was no loss to plaintiff. We do not think that plaintiff was in any way prejudiced by the instruction complained of.
The judgment should be affirmed and it is so ordered. Cox,P.J., and Bailey, J., concur. *Page 1316