ON MOTION FOR REHEARING. The opinion condemns respondent's instructions numbered 2, 4 and 7. Respondent suggests that none of these errors justify the remanding of the whole case, and that if appellant be given judgment for the value of the $200 Liberty Bonds, for nominal damages and costs he will have the benefit of all these errors. Without reviewing what is said in the opinion about these instructions, we think, on a review of the matter, that this is true; and that such a course would best serve the ends of justice, especially in a long, complicated case of this character. [Third Nat. Bank v. Owen, 101 Mo. 558, 585, 14 S.W. 632; State ex rel. v. Dickson, 213 Mo. 66, 90, 111 S.W. 817; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008.]
However, we should mention two of the instructions. Respondent's Instruction No. 7 was criticized because it brought in for defensive recoupment against appellant (to offset the conversion of the Nelson, Moore and Swope notes aggregating $7805) the whole of the John Kegan indebtedness amounting to $14,629.54, whereas, by its instructions numbered 5 and 8, respondent still held on to the $6676.74 note constituting a part of that indebtedness and claimed certain of the securities involved as collateral therefor. We held the Kegan indebtedness was divisible, made up as it was of a number of different notes, but that respondent had not so treated it. On further consideration we have concluded the very fact that these two instructions numbered 5 and 8 set up a separate claim to the $6676.74 note of itself operated as a severance of that part of the whole indebtedness, leaving only the remainder for recoupment against the Nelson, Moore and Swope notes.
As to respondent's Instruction No. 2. The disposition of the case suggested above will obviate our criticism that it ignored the securities not in the strong box, viz., the $200 in Liberty Bonds and the Nelson, Moore and Swope notes; for it will give appellant full credit for the value of these. Regarding the other objection, that the instruction required the jury to find the respondent converted the securities involved to its own use. While this language was inartificial, under the facts of this case, we are convinced the jury could not have been misled thereby. The appellant used the same expression in his petition. There was no determinative issue as to whether the bank got thebenefit of the converted securities. The jury were fully instructed as to the elements of a conversion and the respondent's other instructions took up the several lines of securities separately and stated the theory on which it based its defense as to each of them. In no instance was it even intimated that unless the bank got the benefit or proceeds from the stolen securities it would not be liable. A conversion of the securities to its own use, as that *Page 655 expression was used in the instruction, meant simply a conversion. Our thought in making this criticism of the instruction in the original opinion was that it might be recast on a new trial, but we cannot go so far as to hold the cause should be remanded for another trial on that account alone.
Accordingly, the motion for a rehearing is overruled, the opinion modified, and the cause reversed and remanded with directions to enter judgment for plaintiff for $210.65 as of October 3, 1924, the date of the original judgment, and for costs. Lindsay and Seddon, CC., concur.