Leslie v. Carter.

therefore barred. This is the necessary result of the application of the well settled principle that an entire claim arising either upon contract or in tort cannot be divided up and made the subject of several suits. In such a case it is not ground for a second action that the party may not be able to actually prove in the first case all the items of the demand or that all of the damages may not then have been actually suffered. He is bound to prove in the first action, not only such damage as has been actually suffered, but also such prospective damages by reason of the breach as he may be legally entitled to; for the judgment he recovers will be a conclusive adjudication as to the total damages on account of the breach. A like doctrine is announced in Bracken v. Trust Co., 167 N. Y. 510; Head v. Meloney, 111 Pa. St. 99; Marvin v. Prentice, 94 N. Y. 295; and Lovell v. House of the Good Shepherd, 14 Wash. 211.

Except to show that the doctrine of res adjudicata is everywhere uniformly applied, the citation of authorities from other jurisdictions would have been unnecessary, because its application here has been settled beyond question, if not before, certainly in the cases of Spratt v. Early, 199 Mo. 491; Summet v. R. & B. Co. and St. Louis v. United Railways Co., supra; in each of which it is emphatically held that all of the issues which might have been raised and determined in a given case, but were not, are as completely barred as if they had been adjudicated and included in the verdict.

Plaintiff's petition showed on its face that she was not entitled to recover. The demurrer was therefore properly sustained, which results in an affirmance of the judgment. It is so ordered. All concur.

Strother, Admr., v. Railroad.

SAM B. STROTHER, Administrator of Estate of HOMER MARTIN, Plaintiff in Error, v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY.

Division Two, July 5, 1916.

WRIT OF ERROR: From Order Sustaining New Trial. The propriety of the trial court's action in sustaining a motion for a new trial cannot be listed under a writ of error, and any error committed by the trial court in sustaining the motion cannot be reviewed by writ of error. Section 2054, R. S. 1909, provides for a writ of error only on final judgment, and section 2038 applies only in case of appeals.

Error to Jackson Circuit Court.-Hon. William O. Thomas, Judge.

WRIT QUASHED.

J. W. Jamison and Hadley, Cooper, Neel & Wright for defendant in error.

A writ of error will not lie from an error sustaining a motion for new trial, as is sought in this case, hence the writ should be quashed. R. S. 1909, sec. 2054; Emerson v. Harriett, 11 Mo. 413; Padgett v. Smith, 205 Mo. 122; Kroeger v. Dash, 82 Mo. App. 333.

Yates & Mastin and George B. Strother for plaintiff in error.

1 Black, Judgments, sec. 21, says: "Where a controversy between two parties is ended so far as the court before which it is pending can end it, the judgment is then final, regardless of the mere matter of form." The lower court incorrectly and informally sustained a motion for a new trial (probably) instead of arrest of judgment non-obstante veredicto;

Strother, Admr., v. Railroad.

yet the effect of doing so was just as effective as if the latter had been done because it was on the ground that the peremptory instruction should have been sustained, which if done would have completely ended plaintiff's case in the lower court so that under the above quotation from Black, the finality is there although the form is not. Black further in sections 41, 43, says: "A final judgment or decree is one which determines the substantive merits of the controversy― all the equities in the case. . But it is none the less final, if after settling the equities, it leaves the necessity for some further action or direction of the court in the execution of the decree as it stands." The decisions in Missouri largely lean the other way, although Bank v. Riley, 8 Mo. App. 544, and St. Louis & San Francisco Ry. Company v. Evans, 85 Mo. 323, hold substantially to the Black doctrine, which seems to be the general doctrine throughout the United States. In the St. Louis & San Francisco case, supra, there was an order to turn over some fifty odd thousand dollars; while ordinarily an order to turn money over is not a final judgment, the court there held, after the exhaustive review of cases, that this in substance was a finality, although there were orders necessary to be made later on in the case. In addition to these authorities counsel on behalf of the defendant have appeared to the merits, and as far as it goes have given the court jurisdiction by waiving the technical points and virtually inviting and asking the court to pass on the merits.

ROY, C.—Homer S. Martin recovered judgment against the defendant in error for $14,000 as damages for personal injuries. A motion for a new trial on the part of the defendant was sustained. From the order sustaining that motion the plaintiff came to this court on a writ of error. Since the writ issued the

State v. Pate.

plaintiff died and the cause has been revived in the name of his administrator.

Defendant in error makes the point that the propriety of the trial court's action in sustaining a motion for a new trial cannot be tested under a writ of error. We think the point well taken. Section 2054, Revised Statutes 1909, provides for a writ of error only on a final judgment. Section 2038 gives the right to appeal from an order granting a new trial from an interlocutory judgment in an action of partition and in other cases there mentioned. Those sections were construed in Kroeger v. Dash, 82 Mo. App. 332, in a short but sound opinion, holding that a writ of error cannot be brought on an order granting a new trial for the reason that such order is not a final judgment. That opinion was cited with approval by this court in Padgett v. Smith, 205 Mo. 122. The writ of error issued herein is quashed. Williams, C., concurs.

PER CURIAM.-The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.

THE STATE v. E. T. PATE, Appellant.

Division Twc, July 5, 1916.

1. EMBEZZLEMENT: Instruction: Unlawful Conversion: Criminal Intent. It is not necessary, in a prosecution for embezzlement, that the instruction purporting to cover the offense specifically mention the element of intent, provided its terms are otherwise sufficient to include in a general way all the elements essential to a commission of the act forbidden; but an instruction which merely requires the jury to find that de

2.

3.

State v. Pate.

fendant "did unlawfully convert" to his own use certain money is not sufficient to authorize a verdict of guilty, since the term "convert" does not imply criminal intent, and the term "unlawfully" does not add to its meaning.

-: Conversion: Defined. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent to so apply and dispose of it as to alter the condition or interfere with the owner's dominion, is a conversion; and (except equitable conversion) most acts of conversion are unlawful. So that there may be an unlawful conversion which does not amount to embezzlement, because no criminal intent is present.

-: Designed to Cover Whole Cas:: Error Cured by Defendant's. An instruction for the State in a prosecution for embezzlement designed to cover the whole case which is erroneous because it omits the element of criminal intent, is not cured by one given for defendant.

4. - : From Bank: Crediting Deposits to Self. When money is deposited in a bank and is mingled with its general funds it becomes the property of the bank, and thereby the relation of debtor and creditor arises between the bank and the depositor; and when the cashier without authority increases the overdrafts of a depositor or appropriates money which has been deposited by others by crediting it, not to them, but to himself, his acts constitute embezzlement of money belonging to the bank, and not that of private individuals.

5.-: Evidence: Switching Credits. Evidence that the cashier of a bank "switched" and transferred money from the account of an individual deposit to his own account is competent as evidence of embezzlement from the bank, since it tends to disclose the methods and means by which he endeavored to cover and conceal his acts of conversion, and likewise competent as tending to show the fraudulent and felonious intent necessary to a commission of embezzlement rom the bank.

6.- -:

: Overdrafts: Instruction: Comment on Evidence. An instruction offered by defendant, a cashier, declaring that the charge of embezzlement of the bank's money could not be sustained by proof that individual accounts had been falsified by false entries showing overdrafts against individual depositors, should be refused, because they single out certain isolated facts and give them undue prominence. Besides, such facts are material and competent as tending to establish criminal intent.