Williams v. Whitlock

• Decision Date: 31 March 1851
• Citation: 14 Mo. 552
• Court: Missouri Supreme Court
• Parties: WILLIAMS & YEATMAN v. WHITLOCK.

14 Mo. 552

WILLIAMS & YEATMAN

v.WHITLOCK.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

Margaret A. Whitlock filed a petition, stating that on the 13th day of August, she drew a check on E. W. Clark & Bros. for $1,800 in favor of Willis L. Williams, and delivered the same to him, but he gave no consideration for it. That said Willis L. Williams and James E. Yeatman presented said check for payment and the $1,800 were received thereon, for which amount she demanded payment, and claimed as damages for the wrongful and vexatious receipt and misapplication of her money, the sum of $500. In answer, Williams states, that he with others, went to the house of Mrs. Whitlock in search of the property and effects of Nathaniel Childs, Jr., who was suspected of having smuggled (or stolen) money belonging to the Bank of the State of Missouri. That when Mrs. Whitlock learned the object of his visit, she said that sometime during the last spring, Mr. Childs deposited $2,800 to her credit at E. W. Clark & Bros., $1,800 of which was still on deposit, and she therefore (“voluntarily”) drew a check for said money of Mr. Childs and gave it to him to be delivered to one of the bank directors, which was accordingly done. That he afterwards received the money on it and delivered the same to the officers of the bank. Yeatman states in his answer, that he did not receive or present said check, nor did he receive any money on it--that the check was given to Williams by Mrs. W., the plaintiff, who stated, emphatically, that it was for money belonging to Mr. Childs. On the trial, Mrs. W. proved by her friend, agent and attorney that she demanded a return of the check in writing, and demanded also the proceeds. She produced the letters of Williams & Yeatmen in reply to said demand. The letter of Williams proved that the check was voluntarily given to him by Mrs. W., for the purpose stated in his answer, and that it was disposed of in her presence, by the delivery of the same to a director of the bank. That she said it was drawn for money belonging to Mr. Childs. She also produced a pass-book in which the $2,000 was entered to her credit, and proved by R. S. Whitney that the entry was in the hand-writing of John C. Davy, clerk of E. W. Clark & Bros. (The introduction of pass-book was objected to, but objection was overruled.) Whitney stated that the money had been paid on the check to Williams. He also said that after the entry was made in the pass-book, Davy told him who made the deposit. Whitney was asked on cross-examination “who it was that Davy said made the deposit.” The court would not permit him to answer. He was then asked whether Davy said “it was Nathaniel Childs, Jr.” Witness was not permitted to answer. Williams and Yeatman proved that the Bank of the State of Missouri had lost about $120,000. That Nathaniel Childs, Jr., was strongly suspected of having embezzled or stolen the money of the bank--that they W. and Y., had been authorized by the bank to search for any property, money or effects of said Childs--that in searching for the same, they went to the house of Mrs. W., who denied, at first, having in her possession anything belonging to said Childs. She afterwards said that she had spent the previous night at the house of Mr. Childs--that on leaving him that morning she asked if she could serve him in any way, to which he said yes, and handed her some papers to keep for him, “saying that he expected his house to be searched.” They introduced evidence proving that she said that Mr. Childs had deposited $2,000 to her credit, in the spring, with E. W. Clark & Bros. and had handed to her the pass-book and checks. They also proved that Mrs. Whitlock gave up the papers, given her by Childs, among others, the check for $1,800 as the property of Mr. C. declaring that she was disposed to give up everything belonging to him. They also proved that the money received on said check was put into the hands of one of the bank directors. That said money was looked upon as belonging to Mr. C., and considered as part of the money lost by the bank

The court then gave the following instruction asked by plaintiff below: If the jury find from the evidence, that on the 10th day of May, the sum of $2,000 was deposited with E. W. Clark & Bros. to the credit of plaintiff, and in her name, and subject only to her order and, that defendant, Williams, in conjunction with defendant Yeatman and others on the 13th of August, 1849, procured the plaintiff's check, given in evidence by her for $1,800 of said deposit in his own favor, without any consideration, then the legal title to said check was in plaintiff, and if before said check was cashed, the plaintiff demanded the same by her authorized agent from said Williams, and that afterwards said defendant knowing of said demand procured the money on said check, and afterwards before the commencement of this suit, the said money was also demanded as aforesaid of said defendants, then the plaintiff is entitled to recover.

The defendants then asked ten instructions, whereof the following were given, to-wit: 5. If the jury do not find from the evidence that the plaintiff is the real party in interest, that is, that she was the real owner of the money at the time it was obtained, and continued so up to the commencement of this suit, they will find for defendants. 9. The jury are instructed that money embezzled or stolen by one person from another, and the property obtained by i, while owned by the person so embezzling or stealing, is the money and property of the one from whom it was thus taken, and may lawfully be procured and taken by the owner thereof. And the following were refused:

1. The court is requested to instruct the jury that if they believe from the evidence that the money on deposit was with E. W. Clark & Bros., and which was paid on the check of Margaret A. Whitlock was in fact the money of N. Childs, Jr., or the money of any other person than the plaintiff, they will find for the defendants. 2. If the jury believe from the evidence that the plaintiff voluntarily drew the check introduced in evidence and mentioned in the plaintiff's petition and gave the same to defendant, Williams, as agent for the Bank of the State of Missouri, for the purpose of obtaining the money the said check called for, and that the said Williams did obtain the money and paid it over to the said bank, they will find for defendants. 3. If the jury believe from the evidence that the defendants went to the house where the plaintiff lived, as agents of the Bank of Missouri to obtain any money, goods or chattels or effects of N. Childs, Jr., that might be in the possession of the plaintiff and that the plaintiff surrendered the money or check in question, to obtain said money as the property of said Childs, and that said defendants gave the same to the bank, they will find for defendants. 4. If the jury believe from the evidence that the defendants asked the plaintiff for any money, goods or effects in her possession belonging to Childs, and that she delivered up the money in controversy in this suit as the money of said Childs and they took the same in good faith, for the benefit of the bank, believing it to be a part of any embezzlement by said Childs of the money or funds of said bank or the proceeds of such embezzlement, and delivered the same over to the bank, they will find for defendants. 6. If the jury believe from the evidence that the defendants are not really interested in the money sued for, and that the same was obtained for the use and benefit of the Bank of the State of Missouri, and has been so appropriated and that no benefit has or will accrue to defendants on account of said money, and that it was known to plaintiff at the time the same was obtained, that it was for the bank which was in pursuit of the money alleged to have been embezzled by Childs, they will find for defendants. 7. The jury are instructed that the answers of defendants are to be taken as true, unless the plaintiff has found them false by the testimony of two witnesses, or such facts and circumstances as are equal to the testimony of two witnesses. 8. The court is requested to instruct the jury that the entry in the pass-book made by a clerk of E. W. Clark & Bros., and offered in evidence on the trial of this cause is not evidence that the same was the money of plaintiff in this suit as against anybody but E. W. Clark & Bros.

To which refusal of instructions by the court, defendants excepted, and excepted also to the opinion of the court by which hearsay evidence was introduced by which defendants were prevented from cross-examing witness Whitney. The cause was submitted to the jury--they announced to the court that they could not agree; the court refused to discharge them, and they brought in a verdict for the plaintiff. Whereupon defendants moved for a new trial for various reasons filed, which motion was overruled by the court, to which decision defendants excepted and bring their appeal here.

BARRETT, for Appellants.

I. The court erred in giving the instructions asked by plaintiff below. 1st. Because, although the check was in favor of Williams, without consideration, for money deposited to credit of plaintiff, for which the demands were made in manner and form, &c., still the money was put in her hands for safe-keeping merely, and she was but the servant of another, and had not sufficient property in said money to maintain this action. 7 Cowen, 294; 1 Chitty's Pl. 152; Falkner v. Brown, 13 Johns. 63; 9 Mass. R. 104; Waterman v. Robinson, 5 Mass. R. 265; Whittier v. Smith, 11 Mass. R. 211; Commonwealth v. Morse, 14 Mass. R. 217. 2nd. Plaintiff must show a complete property in the money received and misapplied by defendants, and also the possession of, or right to possess it. 3 Serg. & Rawle, 512-13; 1 Tenn. R. 561; 1 Yeates, 19; Gordon v. Harper, 7 Tenn. R. 9. 3rd. Said instruction was...