Bathgate v. Exchange Bank of Chula
| Decision Date | 20 May 1918 |
| Citation | 205 S.W. 875,199 Mo.App. 583 |
| Parties | CHARLES BATHGATE, Appellant, v. EXCHANGE BANK OF CHULA, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.
AFFIRMED.
Judgment affirmed.
Scott J. Miller and Lavelock & Kirkpatrick for appellant.
Paul D Kitt and L. A. Chapman for respondent.
This is an action upon a certified check for $ 2000 drawn on the defendant bank by one O. T. Larson, and in which plaintiff was made payee. The defendant's answer was in the nature of a bill of interpleader. The trial court overruled plaintiff's demurrer to the answer and plaintiff thereupon filed a reply. The chancellor then heard the evidence, sustained the prayer for an interpleaer, ordered the defendant bank to pay the amount of the check into court, directed that summons returnable to the next term be issued bringing Larson into court and that he and plaintiff be required to interplead for the fund and that defendant bank be discharged from all further liability. Plaintiff has appealed claiming, first that defendant was not entitled to maintain a plea in the nature of a bill of interpleader nor to a judgment directing an interpleader be had; and second, that under the evidence, judgment should have been rendered in plaintiff's favor for the amount of the check.
On March 7, 1917, Bathgate and Larson entered into a contract with each other whereby the former agreed to trade a Polo stock of drygoods and groceries, at marked wholesale price plus 10 per cent, for the latter's farm at $ 100 per acre subject to a mortgage thereon of $ 15000 which Bathgate was to assume, the excess price of the farm above the value of the merchandise to be paid by Bathgate to Larson in cash. It was agreed in the contract that each party should put up $ 2000 in cash as forfeit money, the same to be forfeited by the party that failed to comply with his contract. Afterward, it was agreed that, in lieu of the $ 2000 cash, each party should have his check certified and put it up in escrow, so to speak, with the First National Bank of Polo along with the contract until the trade could be consummated, when that was accomplished each was to take down his check. This was done, the drawer of each check getting his respective bank to certify it for him. Larson drew his check (the one here in suit) on the defendant, Exchange Bank of Chula, and had the First National Bank of Polo to send it to the Chula bank for certification and return to the Polo bank to be then put up with said contract. Before the check reached the Chula bank, Larson went to the Chula bank in person and requested them to certify it for him when it came in. The bank did so on March 8, 1917, and returned it to Polo bank where it was then put up along with the contract and Bathgate's certified check.
The parties to the contract then entered upon an invoice of the stock of merchandise. In the course thereof Larson charged Bathgate with fraud in substituting other goods on him or in bringing other goods into the store to be invoiced to him at the contract price which were not in the stock or a part thereof at the time the trade was made, and which he also claimed were worthless. Not being able to come to an adjustment of the difficulty, Larson refused to proceed further, and, claiming that Bathgate was not performing the contract but had violated it, left town.
Bathgate applied to the First National Bank of Polo for Larson's check and when delivery thereof to him was refused, he obtained ex parte affidavits from certain parties that Larson had thrown up or refused to go on with the trade. Thereupon the Polo bank delivered Larson's check to Bathgate. But before Bathgate could present it to the defendant Chula Bank for payment, Larson notified said last named bank not to pay it as Bathgate was not entitled to the check because of his fraud and the breaking of his contract. Larson further notified the defendant bank that if it did pay the money thereon to Bathgate after notice that he was not entitled to said check, he, Larson, would sue the bank for so doing.
Under the conceded circumstances and the facts as found by the court, the defendant bank was entitled to the relief asked and granted by the court, namely, the right to have the contending claimants to the fund affected by the check litigate and have judicially determined who was rightfully entitled thereto. [Roselle v. Farmers' Bank of Norborne, 119 Mo. 84, 24 S.W. 744; Gee v. Leaver, 172 Mo.App. 191, 157 S.W. 842; McGinn v. Interstate National Bank, 178 Mo.App. 347, 166 S.W. 345; City of Brunswick v. People's Savings Bank, 190 S.W. 60.]
The fact that the defendant bank certified the check does not destroy the bank's right to require an interpleader, for in this case, the bank certified the check at the request of the drawer and not of the payee or holder. This fact makes a vast difference in the matter of the bank's liability. And the fact that the bank knew, at the time the check was certified, that it was to be put up with the Polo bank for the purposes above indicated does not change the situation. For the check was not to be unconditionally delivered to the payee. It had not then been delivered to him and was to be delivered only in case of a certain contingency. It never was delivered to the plaintiff by the drawer or...
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