Bank of Buchanan County v. Gordon

• Decision Date: 30 April 1923
• Docket Number: No. 14671.,14671.
• Citation: 250 S.W. 648
• Parties: BANK OF BUCHANAN COUNTY v. GORDON.
• Court: Missouri Court of Appeals

250 S.W. 648

BANK OF BUCHANAN COUNTY v. GORDON.

No. 14671.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by the Bank of Buchanan County against Thomas P. Gordon. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. B. Norris, of St. Joseph, for appellant.

Chas. H. Mayer and Strop & Silverman, all of St. Joseph, for respondent.

BLAND, J.

This is an action on two counts to recover from defendant the sum of $2,000 and interest. There was a judgment for plaintiff, and defendant has appealed.

Plaintiff conducts a bank in the city of St. Joseph, Mo., and defendant is a grain dealer in said city. Defendant had been a customer of plaintiff for eight or ten years prior to the time he ceased doing business with it in the summer of 1920. On December 1, 1919, defendant deposited in plaintiff bank a check drawn by one O'Brien on the Bank of Hamburg, Iowa, for $1,000, which sum was placed to the account of the defendant so that defendant might at any time draw it out of the bank. The cheek was forwarded by plaintiff to the bank at Hamburg for collection on said day. No remittance thereon having been received within the customary time, plaintiff sent out postal tracers to ascertain if the check had been received by the Iowa bank, but no communication was received from said bank. Between December 13th and December 20th plaintiff notified defendant that it had not received any remittance from the check. On December 13th plaintiff again took up the matter with the Hamburg bank. About December 26th plaintiff received word from said bank that the check had been lost, and plaintiff notified defendant to that effect. Defendant secured a duplicate check from O'Brien and on December 27th deposited with plaintiff the duplicate together with another check of O'Brien's in the sum of $1,000, drawn upon the same bank. The checks were immediately forwarded to the Hamburg bank for payment. Plaintiff endeavored by tracers, telegrams, telephone messages, and letters to procure payment of these checks; but its efforts were unsuccessful.

While attempts to make collection of these checks were being made by plaintiff, defendant was kept advised of the situation, and at one time suggested that he would go to Ramburg and make an attempt to get the money. About the time it was definitely ascertained that plaintiff was unable to make collection of the checks, defendant had withdrawn all of his money from the bank se that the checks could not be charged back to his account. There was ample money in the bank at Hamburg in the account al O'Brien to pay the checks if they had been paid by the usual time, but that bank after several months finally wrote that it was of the opinion that the checks had been return" ed to the plaintiff.

There was evidence on the part of plain" tiff that shortly after defendant had begun doing business with plaintiff, defendant and plaintiff had an agreement when defendant told plaintiff that he could not follow the usual method of clearing checks on out of town banks and requested that plaintiff forward his checks direct to the banks on which they were drawn. Defendant stated that these checks were often given on option transactions or margins and that the collection of the checks would be endangered by the time consumed from the checks going through the usual routine. He desired this done also for the reason that some of his customers were "playing the boards" and did not want other banks to know this. Defendant was asked whether he wanted the checks protested or not, and he replied that he did not want them protested unless the bank called his office over the phone and got instructions from the office in relation to the matter. Plaintiff told defendant that it would have to handle these out of town checks as collection items, "because we can't get the use of our money until they are paid." It was agreed that defendant should be permitted to deposit the checks and as an accommodation to him he would be allowed to draw checks upon the deposit, but if the checks were not paid plaintiff should have the right to charge them back to defendant's account.

Defendant admitted that the checks were deposited for collection, but testified that they were also deposited for credit and denied the special agreement in reference to the right of the bank to charge back the amount of the checks that were not collected and defended upon the ground that plaintiff, by reason of the fact that defendant made a general indorsement of the check: when he deposited them with the plaintiff became the owner thereof; that plaintiff negligently failed to present said checks to the indrawee and negligently and carelessly failed to demand payment of the checks; that the checks were not protested for nonpayment; that defendant received no notice that the checks had not been paid or that they had been protested; that as a result defenda...