Biedermann v. Mermod, Jaccard & King Jewelry Co.
| Decision Date | 02 May 1922 |
| Citation | 242 S.W. 126,210 Mo.App. 158 |
| Parties | WILLIS F. BIEDERMANN, Trustee in Bankruptcy of R. M. Morris Lumber Company, a corporation, Respondent, v. MERMOD, JACCARD & KING JEWELRY COMPANY, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.
AFFIRMED.
Judgment affirmed.
McLaran & Garesche and E. H. Wayman for appellant.
(1) The court erred in refusing to sustain defendant's demurrer to the plaintiff's evidence because, under the law as it stood at the time the case was tried, the burden was on plaintiff to prove as an essential element of his cause of action that the defendant had actual knowledge of the fact that the checks in controversy were issued without the authority of the R. M. Morris Lumber Company, which burden plaintiff failed to discharge (Act of April 9, 1917, section 1, page 144, Session Acts of 1917, now section 996, Revised Statutes of Missouri 1919). (2) The Act of April 9, 1917 enacts a rule of evidence, and therefore has to do merely with the procedure at the trial, and is therefore applicable to all pending causes of action, regardless of when such causes of action accrued. Coe v. Ritter, 86 Mo. 277; O'Bryan v. Allen, 108 Mo. 227; Messimer v McCray, 113 Mo. 382; Howard v. Strode, 242 Mo. 210.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) The appellate courts of this State have already determined that the Act of April 9, 1917, section 1, page 144 of the Session Acts of 1917, now section 996, R. S. 1919, does not apply to checks drawn prior to the enactment of said statute. O'Bannon v. Moerschel, 204 Mo.App. 155; Tobin v. Hewitt Co., 232 S.W. 257. (2) In the construction of any statute it is always to be given a prospective effect, only, unless the positive wording of the statute makes it necessary to give it a retrospective effect. The presumption is always against construing a statute to have a retrospective effect and the language of the Act of April 9, 1917, clearly does not require a retrospective interpretation. Christine v. Luyties, 280 Mo. 416; Murphy v. Welton, 217 S.W. 620; Leete v. Bank, 115 Mo. 184 Supreme Council Royal Arcanum v. Heitzman, 140 Mo.App. 105; Jamison v. Zausch, 227 Mo. 406; State ex rel. v. Dirckx, 211 Mo. 568; 36 Cyc. 1205, ff. Bartlett v. Ball, 142 Mo. 28; State ex rel. v. Wright, 251 Mo. 325; Mott Store Co. v. St. Louis etc. R. R., 254 Mo. 654; State ex rel. v. Frazier, 98 Mo. 426; Petring v. Current River etc. Co., 111 Mo.App. 373; Gladney v. Sydnor, 172 Mo. 318; Cranor v. School District, 151 Mo. 119; 25 R. C. L. Statutes, sec. 35, pp. 787-789. (3) The Constitution of the State of Missouri, article II, section 15, prohibits the passing of any ex post facto law or law impairing the obligation of contracts or retrospective in its operation. To apply the Act of April 9, 1917, now section 996, R. S. 1919, to the transactions in this case would be to give that statute a retrospective operation in violation of the Constitution of this State. To apply that statute to the transactions in this case would make it affect vested rights and take away or impair a right acquired by the plaintiff under existing laws in violation of the Constitution of this State. A cause of action is a vested right. 8 Cyc, 910; Leete v. Bank, 115 Mo. 184; Gladney v. Sydnor, 172 Mo. 318; Ruecking Const. Co. v. Withnell, 269 Mo. 546; Mayhew, Trustee, v. Todisman, 246 Mo. 288; Higbee v. Brockenbrough, 191 S.W. 994; Petring v. Current River etc. Co., 111 Mo.App. 373; Blum v. New York Life Ins. Co., 197 Mo. 513; Cranor v. School District, 151 Mo. 119; Pritchard v. Norton, 106 U.S. 124; 25 R. C. L. Statutes, sec. 38, p. 791 sec. 40, p. 793; Haarstick v. Gabriel, 200 Mo. 237. (4) Errors, though preserved at the trial, are waived on appeal when they are not raised in the assignment of errors or in the brief proper. Smith v. Southern, 236 S.W. 413; Stuart v. Dickinson, 235 S.W. 446; Nations v. Spence, 235 S.W. 1064.
--Plaintiff sues as the Trustee in Bankruptcy of R. M. Morris Lumber Company, a Missouri corporation. The action is for money had and received in eleven counts to recover the amounts of certain checks issued by the R. M. Morris Lumber Company, through R. M. Morris its president, payable to the defendant, and which were received by defendant in payment of the individual debt of R. M. Morris. The checks were issued on various dates between November 26, 1913, and December 7, 1915, all of which were delivered to the defendant, cashed by it, and were taken in satisfaction of defendant's claim against R. M. Morris personally for jewelry sold to him. The eleven checks aggregate the sum of $ 330.25.
No question arises as to the sufficiency of plaintiff's proof to establish his cause of action except in one particular, and that is, there was no evidence offered by plaintiff to prove that the defendant had actual knowledge that the various checks were drawn without the authority of the corporation, this being necessary as asserted by defendant under the provisions of section 996, Revised Statutes 1919, which statute was enacted by the Legislature in 1917 subsequent to the time that the checks referred to were issued and accepted by the defendant. It is asserted that under said statute it is necessary before plaintiff can recover for him to prove actual knowledge on the part of defendant that the checks were drawn without the authority of the corporation, and that said statute being merely a rule of evidence and affecting only the remedy it applies to the present controversy and cause of action notwithstanding it arose and the checks were issued prior to the enactment of the law. Because of the absence of any evidence on behalf of plaintiff that the defendant had actual knowledge that the checks were drawn without the authority of the corporation, the defendant contends that its demurrer to the evidence should have been sustained.
The defendant offered no evidence. The court below refused to sustain defendant's demurrer, and rendered judgment on each count of the petition with interest from the date of the filing of the suit. Following the usual preliminaries defendant has appealed.
A single question is presented, namely, whether the defendant can be absolved from liability because plaintiff failed to affirmatively prove that defendant had actual knowledge that the checks were issued without the authority of the corporation as required by the Act of 1917, in view of the fact that the act was passed subsequent to the acceptance of the checks and the accrual of the cause of action. Plaintiff asserts that there is nothing in the act to indicate that it was intended to be retrospective in its operation and it should not be given that effect; that to do so and impose the burden upon plaintiff of showing such actual knowledge on the part of defendant would be to place upon the act an interpretation contrary to article II, section 15, of the Missouri Constitution, which provides that no law retrospective in its operation can be passed by the General Assembly. The Act of 1917 (section 996, R. S. 1919), is as follows:
"Liability of Corporation, Firm or Co-partnership.--If any check, draft or order of any corporation, firm or co-partnership shall be given in payment of the debt of any officer, agent or employee, of said corporation, firm or co-partnership, the payee or other person collecting such check, draft or order shall not be liable to said corporation, firm or co-partnership therefor, unless it shall be shown that such payee or other person, at the time of collecting same, had actual knowledge that said check, draft or order was issued without authority of said corporation, firm or co-partnership."
Before the enactment of this law a rule of decision prevailed in this State to the effect that in such cases where one accepts the check of a corporation drawn by an officer in payment of his private obligations, he takes it with notice of a lack of authority on the part of the officer, and is required to repay the proceeds in an action for money had and received where it appears that the corporate funds were misapplied. [Reynolds v. Gerdelman, 185 Mo.App. 176, 170 S.W. 1153; Reynolds v. Title Guaranty Co., 219 Mo. 644, l. c. 666, 118 S.W. 641; St. Charles Savings Bank v. Edwards Brokerage Company, 243 Mo. 553, 147 S.W. 978; Reynolds v. Whittemore, 190 S.W. 594; McCullam v. Buckingham Hotel Company, 198 Mo.App. 107, 199 S.W. 417.] And in such a case the defendant carried the burden of showing that the officer was duly authorized to draw upon the funds of the corporation for his private purposes. [McCullam v. Buckingham Hotel Company, supra; Reynolds v. Whittemore, supra; Bank v. Brokerage Company, supra.]
The Act of 1917 modifies the rule heretofore stated and provides that the payee or person collecting the check or draft in such cases shall not be liable to the corporation, unless it be shown that such payee at the time of collecting the check had actual knowledge that said check was issued without the authority of the corporation. By this law a new element of the cause of action must be established which was not required under the law existing prior to the enactment.
In the present case the checks were issued and the cause of action accrued thereon to the corporation long prior to the passage of the act. Is the act in question retrospective in character and applicable to the present case? In the first place, it should be determined whether the Legislature intended that the act should operate retrospectively and apply to prior controversies or causes of action. If it did not, then it would be unnecessary to determine whether...
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