Andrews v. Bank of Buchanan County

• Decision Date: 07 November 1921
• Citation: 234 S.W. 518,208 Mo.App. 366
• Parties: BELLE H. ANDREWS, Respondent, v. BANK OF BUCHANAN COUNTY, Appellant
• Court: Kansas Court of Appeals

234 S.W. 518

208 Mo.App. 366

BELLE H. ANDREWS, Respondent, v. BANK OF BUCHANAN COUNTY, Appellant

Court of Appeals of Missouri, Kansas City

November 7, 1921

Appeal from the Circuit Court of Buchanan County.--Hon. Thos. D Allen, Judge.

REVERSED.

Judgment reversed.

Culver Phillip & Voorhees for respondent.

Thomson & Griswold and Eugene Silverman for appellant.

OPINION

BLAND, J.

This is an action for conversion of a promissory note. There was a judgment for plaintiff and defendant has appealed.

Defendant was engaged in the general banking business at St. Joseph Missouri. Henry G. Buckingham, who was dead at the time of the trial, conducted a loan agency in said city. On October 3, 1918, plaintiff purchased of Buckingham a promissory note for $ 3000, which had been executed to Buckingham by James F. Cutsinger and Josie C. Cutsinger, his wife. This note was secured by a deed of trust on land belonging to Cutsinger in Sullivan county, Missouri. In payment of the note plaintiff gave Buckingham her check for $ 2200 and her note for $ 800, thereupon Buckingham on the same day took the Cutsinger note for $ 3000 to defendant bank and borrowed $ 800 from the bank and gave his note therefor with the Cutsinger note and deed of trust as collateral. There is dispute in the briefs as to whether the $ 800 was borrowed with the knowledge and consent of plaintiff but we think there is none in the evidence but that the $ 800 was borrowed in pursuance of an agreement that plaintiff had with Buckingham. However, this matter will be discussed more fully later.

Buckingham gave a check for $ 3000 on defendant bank which was cleared on October 4th, presumably this was given by Buckingham to Cutsinger in making the loan and was made up of the $ 2200 paid by plaintiff to Buckingham by check and the $ 800 he borrowed from the bank on October 3d. On the latter date Buckingham owed the bank $ 2800 aside from the $ 800 borrowed at that time. This $ 2800 was made up by a note for $ 2500 and one for $ 300. The $ 2500 was secured by other collateral and the $ 300 was an overdraft. On November 1, 1918, plaintiff gave her check to Buckingham for $ 200 to apply on her note of $ 800 and on the same day Buckingham endorsed and delivered this check to defendant. On December 4, 1918, plaintiff made another payment by check to Buckingham in the sum of $ 250 and Buckingham also endorsed this to the bank by the following endorsement--

"Pay to the Order of The Bank of Buchanan County for credit on the $ 800 note on account of the Cutsinger loan, Mr. H. G. Buckingham."

On February 9, 1919, plaintiff gave her check to Buckingham for $ 200 to apply on her note to him and it was endorsed in language similar to the endorsement above. Plaintiff testified that with the exception of one of these notes they were endorsed in her presence.

It will be seen that on October 4, 1918, Buckingham owed the bank $ 3600. On December 4, 1918, Buckingham owed the bank in all about 3000 and gave the bank a note for that amount. This indebtedness also covered interest, expenses, etc., all of which were paid by the new note, leaving a balance of $ 29.48 due Buckingham which was credited to his account. This new note was made in order to have all of Buckingham's indebtedness to the bank evidenced by one note. At the time of its execution Buckingham and the bank agreed that the collateral theretofore held by the bank together with the Cutsinger note should be held as collateral for the new loan. Sometime after this plaintiff heard that her note was being used for an unauthorized purpose. She telephoned the president of the bank and arranged to meet him and Buckingham at the bank. The meeting took place early in May, 1919. At this meeting Fulkerson, president of the bank, claimed that the bank held the note as collateral to the note of $ 3000. According to plaintiff's testimony Buckingham stated to the president of the bank at that time that the Cutsinger note was held as collateral for the $ 800 note "of Mrs. Andrews" (meaning plaintiff), and Buckingham stated to the president of the bank that he had informed the latter to this effect when the Cutsinger note was left at the bank on October 3, 1918, that he told Fulkerson it belonged to plaintiff and that it was left as collateral for the $ 800 note only. The president testified that he never knew that plaintiff claimed to be the owner of the note until two weeks prior to the meeting at the bank, when Buckingham informed him that "it belonged to an old woman."

There was an instruction asked by defendant at the close of all the evidence in the nature of a demurrer to the evidence. After this was overruled the case was submitted to the jury under instructions that told the jury that plaintiff was entitled to recover if the bank at the time it took the Cutsinger note as collateral on December 14th had knowledge that it was the property of plaintiff.

There are several points made by the appellant but as there is one that requires a reversal of the case it is not necessary to discuss the others. There is some contention as to whether plaintiff became the owner of the note until s...