Missouri Lincoln Trust Company v. Third National Bank of St. Louis

Decision Date30 December 1910
Citation133 S.W. 357,154 Mo.App. 89
PartiesMISSOURI LINCOLN TRUST COMPANY, Appellant, v. THIRD NATIONAL BANK OF ST. LOUIS, Respondent
CourtMissouri Court of Appeals

Argued and Submitted December 6, 1910.

Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.

AFFIRMED.

Judgment affirmed.

George B. Webster for appellant.

(1) The first count of the plaintiff's petition states a good cause of action on the theory of the defendant's negligence which resulted in the plaintiff's loss. Negligence is the failure to observe for the precaution or safety of the interests of other persons, that degree of care, precaution and vigilance which the circumstances justly demand. Henry v. Railroad, 67 F. 426; Thompson, Com Neg., sec. 1; Cooley, Torts (2 Ed.), p. 572; Wencker v Railroad, 169 Mo. 592. Where one of two innocent persons must suffer for the fraud of a third person, he will be answerable for the loss whose carelessness or negligence enabled that third person to perpetrate it, rather than the person who is guilty of no negligence. Bank v O'Connell, 23 Mo.App. 165; Bank v. Wade, 73 Mo.App. 558; Smith v. Railroad, 74 Mo.App. 48; Bank v. Brown, 96 Va. 614; Bank v. Zeims, 93 Iowa 140; Dean v. Briggs, 137 N.Y. 274; Walsh v. Hunt, 120 Cal. 46; LeCoil v. Armstrong Co., 140 Ind. 256; Stebbins v. Walker, 46 Mich. 5. (2) The first count of the petition was also good as an action on the case in the nature of deceit. Banks v. Byers, 139 Mo. 627; Nat'l Bank of Rolla v. Bank, 125 S.W. 513; Cotrill v. Krum, 100 Mo. 389; Wells v. Adams, 88 Mo.App. 215; Matlock v. Reppey, 47 Ark 148; McAleer v. Horsey, 35 Md. 439; Franklin v. Holle, 7 Mo.App. 241; Gilmer v. Hands, 86 N.C. 317. If a statement is made of a matter susceptible of accurate knowledge and made in the form of a positive assertion calculated to convey the impression that it is true, when in fact it is not true, the representation is fraudulent. Bank v. Trust Co., 179 Mo. 648; Hamlin v. Abel, 120 Mo. 188; Walsh v. Morse, 80 Mo. 568; Chase v. Rusk, 90 Mo.App. 25; Macbeth v. Craddock, 28 Mo.App. 380; Caldwell v. Henry, 76 Mo. 254. (3) The petition states a good cause of action for money had and received to the plaintiff's use. Quarles v. Hall, 100 Mo.App. 523; York v. Bank, 105 Mo.App. 127; Moses v. Macferlan, 2 Burr. 1005; Campbell v. Kaufmann Mfg. Co., 127 Mo.App. 287; Dobson v. Winner, 26 Mo.App. 329; Richardson v. Drug Co., 92 Mo.App. 515; Gaines v. Miller, 111 U.S. 395; Hight v. Sanner, 71 Ill.App. 183; Bank v. Dismukes, 107 Ga. 212; Porter v. Roseman, 165 Ind. 255; Clark v. Bank, 57 Mo.App. 285; Lewis v. Sawyer, 44 Me. 332; Bank v. O'Connell, 23 Mo.App. 165; Bank v. Murdock, 62 Mo. 70; Bank v. Bank, 151 Mass. 280; Bank v. Brown, 96 Va. 614; LeCoil v. Armstrong Co., 140 Ind. 256; Burgess v. Gragaw, 49 Minn. 462; Pulliam v. Cantrel, 77 Ga. 563; Moody v. Bank, 19 Tex. Civ. App. 278; Stebbins v. Walker, 46 Mich. 5; Redmond v. N. Y., 125 N.Y. 632; Neal v. Coburn, 92 Me. 139. The plaintiff is not estopped in this case, because it had neither knowledge nor means at hand to discover them. Byers v. Jacobs, 164 Mo. 141; Blodgett v. Perry, 96 Mo. 263; Bayles v. Perry, 51 Mo. 449; Brandt v. Va. C. & I. Co., 93 U.S. 326; 2 Pomeroy Eq. Jur. (3 Ed.), sec. 810; Fehlig v. Busch, 165 Mo. 144; Gray v. Gray, 83 Mo. 106; Campbell v. Hoff, 129 Mo. 317; Holden v. Ins. Co., 46 N.Y. 1; Ins. Co. v. Martin, 13 Minn. 59.

Fordyce, Holliday & White for respondent.

(1) The demurrer to plaintiff's amended petition admitted only the facts in said petition which were well pleaded, and did not admit the matters of law or conclusions of law or of fact of the pleader therein set out. Bradley v. Franklin County, 65 Mo. 638; Blaine v. Geo. Knapp & Co., 140 Mo. 241; State ex rel. v. Aloe, 152 Mo. 466; Newton v. Newton, 162 Mo. 173; Hand v. St. Louis, 158 Mo. 204; Hogan v. St. Louis, 176 Mo. 149; Searcy v. Clay County, 176 Mo. 493; Gibson v. Railroad, 225 Mo. 473; Donovan v. Boeck, 217 Mo. 70; Mallinckrodt v. Nemnich, 169 Mo. 388. (2) The first count of the petition does not state facts sufficient to constitute a cause of action against defendant for negligence. Troth v. Norcross, 111 Mo. 630; Kelly v. Benas, 217 Mo. 9; Brewing Assn. v. Talbot, 141 Mo. 674; Rossi v. Bank, 71 Mo.App. 150; Zane on Banks and Banking, p. 266; Bank v. Bank, 91 N.Y. 74; Bank v. Bank, 152 Ills. 296; 29 Cyc., p. 501, and cases cited in note 14 on p. 502. (3) The first count of the petition does not state facts sufficient to constitute a cause of action against defendant for deceit. 20 Cyc., p. 13; Bank v. Byers, 139 Mo. 627; Live Stock Remedy Co. v. White, 90 Mo.App. 498; Edwards v. Noel, 88 Mo.App. 434; Thompson v. Newell, 118 Mo.App. 405; Cement Co. v. Stewart, 103 Mo.App. 182; 2 Morse on Banks and Banking (4 Ed.), sec. 476; Ogden on Negotiable Instruments (1909), pp. 129, 169; Bank v. Bank, 152 Ill. 296. (4) The petition does not state facts sufficient to constitute a cause of action against defendant for money had and received to the plaintiff's use, since it appears from the petition that the payment made by the plaintiff to the defendant was voluntary. Buchanan v. Sahlin, 9 Mo.App. 552; 22 Am. and Eng. Ency. Law (2 Ed.), 625; Needles v. Burk, 81 Mo. 569; Hitchcock v. Crawford County, 200 Mo. 170; Savings Assn. v. Kehlor, 7 Mo.App. 158; State ex rel. v. Stonestreet, 92 Mo.App. 214; Schell City v. Rumsey Mfg. Co., 39 Mo.App. 264; Wolf v. Marshall, 52 Mo. 167; Clowdis v. Railroad, 71 Mo. 510; Teasdale v. Stoller, 133 Mo. 645; Brewing Co. v. St. Louis, 187 Mo. 367.

REYNOLDS, P. J. Nortoni, and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

The amended petition in this case, as set out in the transcript before us, contains two counts or statements of the cause of action relied upon by plaintiff, both, however, relating to one and the same transaction, the grounds of recovery only differing. After averring the incorporation of the parties for its first cause of action the plaintiff states that on and for a long time prior to September 8, 1906, one Parker was a depositor in and customer of the defendant; that on the 8th day of September, 1906, the St. Louis and San Francisco Railroad Company drew its check upon the State National Bank of St. Louis in favor of Parker, and that on the same day the check, purporting to be endorsed by Parker, was presented to the defendant, but that the endorsement thereon was in truth and in fact not the endorsement of Parker, nor any simulation of his signature, all of which the defendant then knew, or, by the exercise of ordinary care and prudence, might have known; that nevertheless the defendant accepted the check, and in lieu thereof issued to the order of Parker its sight draft upon the Continental National Bank of Chicago, Illinois, dated September 8, 1906, whereby it ordered the Continental National Bank to pay to the order of Parker, the sum of six thousand dollars, and paid the balance of the check issued by the Railroad Company in cash or its equivalent; that thereupon the defendant delivered the draft for six thousand dollars to one Hand, and that afterwards, and upon the same day, Hand placed on the back of the draft an endorsement directing the payment of the same to one Hulbert, and signed the name of the payee, Parker, to this endorsement; that the signature of Parker so affixed was not his individual signature, nor any simulation or imitation thereof, nor so like the individual signature of Parker as to mislead any person of ordinary care and prudence; that thereafter, and upon the same day, Hand delivered the draft of six thousand dollars, for value received, and in the ordinary course of business, to Hulbert, who in turn endorsed and transferred the same, for value received, and in the due course of business, to one Schuermann, who thereupon transferred and delivered the same, for value received, and in the due course of business, to the plaintiff; that thereafter, on or about the 12th day of September, 1906, the plaintiff transferred and delivered the same for collection to the National Bank of Commerce, which collected the amount of the said draft from the Continental National Bank, which in turn presented the draft for payment to the defendant herein; that thereupon the defendant, notwithstanding the fact that it was bound to know the individual signature of Parker, and to inquire and examine as to the genuineness of the endorsement on the draft purporting to have been made by Parker as aforesaid, negligently and carelessly failed and omitted to make any inquiry or to notice the lack of similarity between the purported endorsement of Parker and his individual signature, but paid the draft, notwithstanding the fact that the purported endorsement of Parker was not so similar to his individual signature as to mislead any person of ordinary care and prudence; and that thereupon the liability of all the endorsers upon the draft to whom the plaintiff might otherwise have looked to compensate it for any loss which might be sustained by it through the false, fraudulent and fictitious endorsement first appearing upon the draft as aforesaid was terminated; that thereafter, about the 30th of January, 1907, the defendant called upon and compelled the plaintiff to refund to it through the Continental National Bank, the amount of the draft, without disclosing to the plaintiff the fact that it had theretofore paid the draft and so terminated the liability thereon of itself and all of the endorsers; that at the time of the demand of the defendant the draft was then in the possession of the defendant, but was not exhibited to the plaintiff, and the defendant gave out to and created upon the plaintiff, by its acts, statements and representations, the impression that the draft was...

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