Leech v. First National Bank of Maryville
| Citation | 74 S.W. 416,99 Mo.App. 681 |
| Parties | A. D. LEECH, Assignee, etc., Appellant, v. FIRST NATIONAL BANK OF MARYVILLE, MISSOURI, Respondent |
| Decision Date | 11 May 1903 |
| Court | Court of Appeals of Kansas |
Appeal from Nodaway Circuit Court.--Hon. Gallatin Craig, Judge.
AFFIRMED.
Judgment affirmed.
E. A Vinsonhaler and Gilmore & Brown for appellant.
(1) There was no testimony tending to support the finding of facts made by the court, but even if the facts found were true, they did not constitute the fund in controversy a trust fund. Connor v. Black, 132 Mo. 150; Hill v Johnson, 38 Mo.App. 383; Deierling v. Sloop, 67 Mo.App. 446; Crawford v. Spencer, 92 Mo. 498. (2) The evidence tending to show that the Trader's Grain Company was operating a bucket-shop was improperly admitted. The bank had received the fund in controversy as the money of the Trader's Grain Company, and could not deny the title of its depositor to the fund so long as it was not dispossessed by a superior title. Dougherty v Chapman, 29 Mo.App. 233; Cole v. Railroad, 21 Mo.App. 443; Sherwood v. Neal, 41 Mo.App. 416; Pullman v. Burlingame, 81 Mo. 11; 5 Cyclopedia of Law and Procedure, p. 172. (3) The money in controversy having been deposited in the name of the Trader's Grain Company is presumed to belong to it. The burden was upon defendant to show that it did not, and there was no testimony tending to sustain such a contention. The finding of fact by the court that the business at Maryville was not authorized by the company, is wholly without evidence to support it.
W. C. Ellison and J. S. Shinabargar for respondent.
(1) Until margins are appropriated by the broker to reimburse himself for loss, they belong to the customers, and the broker holds them simply as a trustee. In this case, there is no evidence that any loss had been sustained on the customer's side of the transactions. (2) Complaint is made of the lower court's action in admitting evidence to prove that Evans was in the bucket-shop business. The admissibility of such evidence depends upon the purpose for which it is offered. In this case, the object was to show that the deposit was made up of the proceeds of a criminal business, and the object of proving this was to rebut the presumption that the legally incorporated Trader's Grain Company would accept a deposit of that character, made in its name, but without its express authority. Branch v. Dawson (30 N.W. 545), 36 Minn. 193; Davis v. Bank, 53 Mich. 163.
--Plaintiff is the assignee of the Trader's Grain Company, a corporation located at Kansas City, Missouri, and as such brought this action against the defendant bank for $ 1,015.77 alleged to have been deposited by the grain company before the assignment and to have been in the hands of the bank as a deposit at the time of the assignment. The trial was had without the aid of a jury and the court found the fact to be that the grain company did not own the deposit, and declared the assignee could not recover. Judgment being thereupon rendered for defendant, plaintiff duly appealed.
Plaintiff's contention is that the court's finding is not justified by the evidence in the record. It appears that plaintiff had an agent named Flemming located at St. Joseph, Missouri, who had supervision and charge of the company's business in that part of the State. This agent had an agent at Maryville, Missouri, named Evans, who conducted a business in the name of the company in that vicinity and reported directly to Flemming. There was evidence amply sufficient to justify the court in finding that Evans did not confine himself to legitimate dealings but did an unlawful business in the company's name; that is, he conducted what is commonly called a bucket-shop business in grain and stocks, contrary to the statutes of this State (sections 2221-2225, Revised Statutes 1899).
One Lee was a customer of Evans at Maryville in the unlawful business and put up with him what is known as "margins" to secure him against loss in the deals. These sums were deposited by Evans in the defendant bank in the company's name, the understanding with the bank being that they were only to be checked out by Flemming at St. Joseph. There is no evidence that the company ever authorized Evans' unlawful transaction, or that it ever knew of the deposit in controversy, or made any claim thereto prior to the assignment. In this state of the record, the contention is that it is to be presumed the grain company accepted or recognized the deposit, and that it therefore passed to plaintiff's assignee, under the general terms of the deed of assignment.
Ordinarily a deposit of money by a third person to the credit of another, being for his benefit, will be presumed to have been accepted by him. But this is only true of a lawful transaction. It is not true where the presumption would establish an unlawful act, or participation in an unlawful act. For the primary presumption is always in favor of innocence. In conflicting presumptions the latter always prevails. All other presumptions, merely as such, give way to the presumption of...
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