York v. Farmers' Bank

• Decision Date: 07 March 1904
• Citation: 79 S.W. 968,105 Mo. App. 127
• Parties: YORK v. FARMERS' BANK OF GARDEN CITY.
• Court: Missouri Court of Appeals

79 S.W. 968

105 Mo. App. 127

YORK v. FARMERS' BANK OF GARDEN CITY.

Kansas City Court of Appeals. Missouri.

March 7, 1904.

PLEADINGS—VARIANCE — ASSUMPSIT — MONEY HAD AND RECEIVED—CONVERSION—INSTRUCTIONS—HARMLESS ERROR—INTEREST—BANKS —ULTRA VIRES CONTRACT—ENFORCEMENT.

1. A party cannot sue upon one cause of action and recover on another.

2. A petition, alleging that plaintiff was the owner and entitled to the possession of eight mules, consigned by A. to B. and sold by the latter, the proceeds being received by defendant bank, which knew at the time of their receipt that plaintiff was entitled thereto, and that plaintiff had demanded payment, which defendant had refused, sufficiently stated a cause of action for money had and received.

3. Where one receives money for the use of another, and neglects or refuses to pay it over to that other, the latter may maintain an action for money had and received, irrespective of the manner in which the money came into the former's hands, provided the latter is legally entitled thereto.

4. A charge imposing on plaintiff a burden which the law does not require, to entitle him to recover, does not prejudice defendant.

5. Where plaintiff sold mules for cash, taking the purchaser's check on defendant bank therefor, but not in payment, and the purchaser consigned the mules, with other live stock, to a commission merchant, on whom he drew a sight draft for the amount of the sale effected by him, which he deposited with defendant, plaintiff, after demand and refusal, could recover from defendant the amount of the check, in an action for money had and received, without proving the amount for which his mules were sold; the aggregate of the sale being sufficient to meet, not only plaintiff's check, but all similar ones given by the purchaser to the owners of the live stock.

6. A bank, receiving a fund with notice of the person to whom it belongs, and refusing to pay it over, while guilty of conversion, may also be held liable in an action for money had and received.

7. In an action for money had and received, interest at the rate of 6 per cent. is properly allowed from the date of demand. Rev. St 1899, § 2869, providing for damages in the nature of interest above the value of the goods at the time of the conversion, has no application to such an action, but only to those arising ex delicto.

8. The refusal of an instruction, substantially the same as others given at the instance of a party, is not error.

9. While an arrangement between the cashier of a bank and a depositor, whereby the bank was to pay the latter's overdraft for stock purchased, covering the same by passing the draft on to the commission company to which the stock was shipped, was in excess of the charter powers given banks by Rev. St. 1899, c. 12, art. 8, yet, when executed by the drawing of checks and the giving of drafts for an amount sufficient to cover the checks, it would be upheld and enforced by the courts.

10. An owner of live stock, who sells the same to one having an agreement with the bank to allow him to overdraw his account when purchasing stock, and meet the overdraft by drawing on his commission merchant, and who takes a check on the bank at the time of the sale, is sufficiently in privity with his purchaser to enforce the liability of the bank resulting from such arrangement, although he is not suing on the contract.

Appeal from Circuit Court, Cass County; W. L. Jarrott, Judge.

Action by T. M. York against the Farmers' Bank of Garden City. From a judgment for plaintiff, defendant appeals. Affirmed.

A. L. Graves and A. A. Whitsitt, for appellant, cited, among other authorities, Sandeen v. Railroad Co., 79 Mo. 278; Finlay v. Bryson, 84 Mo. 664; Jones v. Loomis, 19 Mo. App. 234; Johnson v. Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; Rippee v. Ry. Co., 71 Mo. App. 557; Crothers v. Acock, 43 Mo. App. 318; Trimble v. Stewart, etc., 35 Mo. App. 541; Fisher & Co. v. Realty Co., 159 Mo. 562, 62 S. W. 443; Raming v. Ry. Co., 157 Mo. 477, 57 S. W. 268; Cole v. Armour, 154 Mo. 333, 55 S. W. 476; Huston v. Tyler, 140 Mo. 252, 36 S. W. 654, 41 S. W. 795.

C. W. Hight and T. N. Haynes, for respondent.

SMITH, P. J.

The petition is in three counts, in the first of which it is stated that the plaintiff was the owner and entitled to the possession of eight mules, which were shipped by A. F. Hord from Harrisonville, and consigned to the McFarlane-Evans Company, East St. Louis, and by that company sold, and the proceeds arising from such sale, amounting to $950, were received by defendant, an incorporated bank, located at Garden City, in Cass county; that the defendant knew, at the time of the receipt of such proceeds, that the plaintiff was entitled thereto; and that the plaintiff had demanded of defendant the payment of such proceeds, which the latter had refused. The facts stated in the second and third, except as to parties, animals, and amount for which they were sold, are very much the same as those stated in the first. It was further stated in said second and third, however, that the plaintiff had acquired by assignment the causes of action therein stated, and had a right of action therein. The answer was a general denial.

The evidence tended to establish about these facts, viz.: That said Hord, a trader in live stock, resided in the vicinity of where said defendant bank was located, and, though without any capital of his own, was by the assistance of defendant enabled to carry on a rather extensive trade in live stock. During the 12 months preceding the transaction which gave rise to this action, his business with defendant had amounted to something like $70,000. Under an arrangement with defendant, he carried on his trading operations in about this way: He would purchase here and there horses, mules, or other stock, giving his check on defendant therefor, and marking on each check the kind of stock for which it was given. These checks would be paid by defendant, and, when one or more carloads of such stock was purchased and ready for shipment, he would draw a sight draft on the commission merchant to whom the stock was consigned, and in this way cover the checks which he had given the persons from whom he had made his purchases. Further evidence was adduced which tended to show that, along early in January, 1903, it was discovered by defendant that Hord had not been successful in his trading, and that the aggregate amount of his checks exceeded his drafts, and that he was behind with defendant to a considerable amount. The defendant became restless and uneasy, and began to look about to see how it could best even up its account with Hord, who, in the meantime, carried on his trading operations without serious interference, giving his checks and drafts as he had been accustomed to do. On January 9, 1903, the defendant's cashier, Stevens, called Hord up by telephone at Archie, and inquired how he had come out on his shipment made on the 6th, to which Hord answered that he had made money. Stevens then inquired when he was going to ship again, to which Hord answered that he had bought one horse that evening, and was going to Butler, Adrian, and Harrisonville to buy the rest. Hord in this telephone talk told Stevens that he would mail him a draft that day, and when the shipment was complete he would make a draft for the full amount of the cost of the horses. Stevens responded: "All right." Hord then said: "You O. K. the checks I am giving, and send me a check book. * * * I am going to buy horses, and, if any of the banks call you up, you can tell them it's all right for these horses." To which Stevens replied: "Yes, sir." Stevens sent Hord the check book to Archie, and the latter sent him a draft for $1,800 on McFarlane-Evans Company, with instructions "to hold it until the two carloads of horses were made up, and then he would make a draft for the full amount, when the former draft could be returned to him." On January 12th, Stevens wrote Hord that "your account is barely even since the $1,800 draft is in. Don't buy any more horses at this time than you can ship out clean." On the same day Hord answered the above letter, saying: "I will buy no more horses than I can ship out, but please take care of these checks. I will wire draft Saturday in place of the one you hold. Will ship hogs tomorrow, and will wire draft on them. * * * Please don't turn down my checks until I get this load off," etc. On the 15th Hord inclosed a letter which he had received from his commission merchant, on which he wrote that the horses and mules he had been buying that week would make money, and that he would ship out Saturday, and wire him a draft. Hord went from Archie to Butler and Adrian, where he bought horses and mules amounting to about $1,000, giving his checks for the purchase price. On the 14th he went to Harrisonville, where he bought the eight mules of plaintiff, and the horses of Williams and Haines, and these, with others purchased there, made up a car, which, with that purchased at Adrain, he shipped on the 17th. The purchase price of plaintiff's mules was $950, for which Hord gave his check on defendant. He also gave his check to the plaintiff's assignors for the price of each of the horses severally purchased of them. These checks were deposited in a Harrisonville bank for credit, and by it sent to defendant for payment, which was refused. When the two carloads of horses and mules were shipped, Hord telegraphed to Stevens to draw a draft on McFarlane-Evans Company in his name for $3,700. The draft was accordingly drawn and paid. The mules brought $56 in excess of the amount of the draft, which excess was sent to defendant for Hord's credit. The defendant, it seems, paid all of the checks given by Hord for the two carloads of horses and mules, except those purchased of plaintiff and his assignors, Williams and Haines. The checks given the latter were not presented to defendant until after the...