Citizens Trust Company v. Tindle
| Decision Date | 22 December 1917 |
| Citation | 199 S.W. 1025,272 Mo. 681 |
| Parties | CITIZENS TRUST COMPANY and PEMISCOT COUNTY BANK, Appellants, v. A. C. TINDLE et al |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Frank Kelly, Judge.
Affirmed.
Shepard & Reeves and Oliver & Oliver for appellants.
(1) Our statute provides that every action shall be prosecuted in the name of the real party in interest. The Citizens Trust Company, as assignee, has an interest in the bond. Sec. 1729 R. S. 1909; Waterman v. Frank, 21 Mo. 111. (2) There is nothing in section 1084 that prevented the Pemicost County Bank from doing what it did do, in assigning certain assets and choses in action to its co-plaintiff, the Citizens Trust Company. Section 1084 prohibits a bank that is "receiving deposits" from making a "general assignment of its business and affairs." There is nothing in this petition that can be tortured into an averment that at the time the Pemiscot County Bank assigned certain assets and choses in action to its co-plaintiff, it was "receiving deposits." Nothing of that kind appears anywhere in this petition. The prohibition in the statute is leveled against a bank "receiving deposits" from making a general assignment of its business and affairs. No such state of facts is pleaded in this petition. On the contrary, the petition, in the most direct and positive way, states the purpose of the assignment -- to liquidate. Therefore the Citizens Trust Company had the right under the circumstances detailed in this petition, to take and hold by assignment the bond executed by these appellants and to enforce its payment in this suit. (3) The "general assignment" mentioned in Section 1084 is the assignment mentioned in Chapter 8, Section 896 et seq R. S. 1909. A bank "receiving deposits" is prohibited from making that kind of an assignment. Secs. 896 1084, R. S. 1909. (4) Moreover it does not lie in the mouth of these defendants to raise that question. If the Pemiscot County Bank has violated its charter the State alone has the right to complain. Goodland v. Bank, 74 Mo.App. 376. (5) Sec. 1112, R. S. 1909, provides that "the president, cashier, assistant cashier, or any other officer, upon whom the powers of cashier may be imposed by the board of directors, before entering on the duties of their office, shall give good and sufficient bonds, which shall be approved by the board of directors, in writing . . . conditioned that they will well and faithfully perform all the duties of their office, and that they will hold the bank harmless for any loss occasioned by any act of such officer, until all his accounts with the bank shall have been fully settled and satisfied." (6) The phrasing of the bond sued on shows a clear intention on the part of the respondents to comply with Section 1112. It was their purpose to comply with that provision of the statute. They evidently believed they had complied with the provisions of the statute, and the board of directors of the bank evidently believed that the bond tendered contained the statutory conditions required in such a bond. Both sides acted upon the assumption that the bond was regular and the conditions required by the statute were perfectly expressed. The bank examiner evidently thought so as well as the board of directors. The case is made to turn upon this question: "What was the intention of the parties as disclosed by the instrument, read in the light of the surrounding circumstances?" Reason and authority support appellants' contention that the writing sued upon was intended as a bond. Lionberger v. Krieger, 88 Mo. 165; Brandt on Suretyship, sec. 80; Beers v. Wolf, 116 Mo. 184; Gleason v. Railway, 112 Mo.App. 116; Westervelt v. Mohrenstecher, 34 L.R.A. 479; 5 Cyc. 753, 755; Richmond v. Woodard, 32 Vt. 833; Belch v. Miller, 32 Mo.App. 387; Zellars v. Surety Co., 210 Mo. 104. (7) A bond is nothing but a written contract. The rule for the construction of contracts which prevail over all others, is that the court may put itself in the place of the contracting parties; may consider, in view of all the facts and circumstances surrounding them at the time of the execution of the instrument, what they intended by the terms of their contract, and when their intention is manifest, it must control in the interpretation of the instrument, regardless of inapt expressions or mere technical rules of construction. Westervelt v. Mohrenstecher, 76 F. 121; B. & L. Assn. v. Obert, 169 Mo. 515; Caldwell v. Layton, 44 Mo. 222; Kansas City v. Youmans, 213 Mo. 151. (8) The omission of the scrivener to insert the word "not" between the words "shall" and "well" in the first line of the last paragraph of the bond (describing the conditions upon which the sureties are liable) gives rise to this suit. Without the word "not" having been written or intended to have been written, there would have been no occasion whatever for the sureties on the bond to have signed it. 5 Cyc. 755.
W. M. Fitch, Assistant Attorney-General, and J. P. Gilmore, Amici Curiae.
(1) The bond in suit is a statutory bond required by law of all persons who assume the right to act as cashier of a banking corporation in Missouri. Sec. 1112, R. S. 1909; Jones v. Newman, 36 Hun, 634. (2) Where parties have entered into a bond required by law, and the bond is sufficient to show a clear intent on the part of such bondsmen to create the obligation provided in such cases by law, then the obligation is consummated, even though it be necessary in reading said bond to omit some word or to suppress some word in the obligation to fully and clearly express such intent. Sizemore v. Morrow, 6 N.C. 54; Gully v. Gully, 1 N.C. 20; Jones v. Newman, 36 Hun, 634; Pratt v. Wright, 13 Grat. (Va.) 175; Kincannon v. Carroll, 9 Yerg. (Tenn.) 11; Hotel Co. v. Encampment Co., 140 Ill. 248; Monmouth Park Assn. v. Iron Works, 55 N.J.L. 132; Bettman v. Harness, 42 W.Va. 433; Probate Judge v. Ordway, 23 N.H. 198; Swain v. Graves, 8 Cal. 549; Zellars v. Surety Co., 210 Mo. 86; Hoshaw v. Gullet, 53 Mo. 86; Graves v. McHugh, 58 Mo. 499; Flint ex rel. v. Young, 70 Mo. 221; State to use v. Berry, 12 Mo. 377; Newton v. Cox, 76 Mo. 352; Wimpey v. Evans, 84 Mo. 144. (3) "It is a rule of construction that the promisor is bound according to the sense in which he apprehended that the promisee received his proposition." Counts v. Medley, 163 Mo.App. 546; Bruner v. Wheaton, 46 Mo. 363. (4) "It has been settled since an early day in this State that common sense and good faith are the leading characteristics of all interpretations." Counts v. Medley, 163 Mo.App. 546; Fenton v. Perkins, 3 Mo. 23. (5) "Where there is room for construction, a contract should not be interpreted so as to give an unfair advantage to one of the parties to it over the other." Counts v. Medley, 163 Mo.App. 546; McManus v. Fair Co., 60 Mo.App. 216; Lumber Co. v. Dent, 151 Mo.App. 614. (6) Where one construction will destroy a contract and another construction will make it valid, and the party trying to destroy the contract is the party giving it, and who wrote it, then the court should so construe the contract as to be valid. 9 Cyc. 586, and note 36; Ferry Co. v. Railroad, 128 Mo. 224. (7) Where the contract contains no specific provision on a given point, or its terms are ambiguous, the construction placed upon the contract by the parties to it will control. Ins. Co. v. Dutcher, 95 U.S. 269; Reed v. Ins. Co., 95 U.S. 23; District of Columbia v. Gallagher, 124 U.S. 527; Jones v. De Lassus, 84 Mo. 541; Gas Light Co. v. St. Louis, 46 Mo. 121; Rose v. Carbonating Co., 60 Mo.App. 28; Mathews v. Danahy, 26 Mo.App. 660; Depot Co. v. Railway, 131 Mo. 291; Work v. Welch, 160 Ill. 468; Street v. Storage Co., 157 Ill. 605; Mohr v. McKenzie, 60 Ill.App. 575; 2 Page on Contracts, secs. 1126-1127; 9 Cyc. 588; Sattler v. Hallock, 160 N.Y. 291; Vincennes v. Light Co., 132 Ind. 114; Robbins v. Kimball, 55 Ark. 414; Katz v. Bedford, 77 Cal. 319; Railroad v. Anderson, 11 Colo. 293; Brigham v. Ross, 55 Conn. 373; Pratt v. Prouty, 104 Iowa 419; Mitchell v. Wedderburn, 68 Md. 139. (8) The legal effect of a contract or bond does not depend upon its being punctuated correctly. 2 Page on Contracts, sec. 1124; Ketcham v. Spurlock, 34 W.Va. 597; Homer v. Ins. Co., 98 F. 240, 39 C.C.A. 45. (9) In case this court should hold the bond in suit insufficient as a statutory bond then the court must hold it good as a common-law bond. State ex rel. v. O'Gorman, 75 Mo. 370; Grant v. Brotherton, 70 Mo. 458; Waltermann v. Frank, 21 Mo. 108; State ex rel. v. Sappington, 67 Mo. 529. (10) The rights of the sureties are not changed by the construction of the bond contended for by appellants. (11) Where an obligation has been created, then the law will put it beyond the power of the party who assumes the obligation to avoid it. Page v. Cook, 28 L.R.A. 759; McCarty v. Howell, 24 Ill. 341; Harlow v. Boswell, 15 Ill. 56; Eaton v. Yarborough, 19 Ga. 82; Lewis v. Tipton, 10 Ohio St. 88; Crooker v. Holmes, 65 Me. 195; Walters v. McBee, 1 Lea (Tenn.), 364.
Ward & Collins and John E. Kane for respondents.
(1) The Citizens Trust Company, as assignee, is improper party to this suit. "Every action shall be prosecuted in the name of the real party in interest." Sec. 1729, R. S. 1909; Dickey v. Porter, 203 Mo. 24; Citizens Bank v Burris, 178 Mo. 73; Van Stewart v. Miles, 105 Mo.App. 246. Here the suit was brought first as the liquidating agent, but a suit in this State cannot be brought in the name of an agent or trustee. Draper v. Faris, 56 Mo.App. 419; Furniture Co. v. Radditz, 28 Mo.App. 213. (2) There is nothing in the petition to show any authority in Pemiscot County Bank to bring this suit, but the petition shows that the Citizens Trust Company had the legal title, but that showing is...
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