Boatmen's Sav. Bank v. Overall
| Decision Date | 10 February 1885 |
| Parties | BOATMEN'S SAVINGS BANK, Respondent, v. OVERALL, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Reversed and remanded.
HOUGH, OVERALL & JUDSON, for the appellant.
W. B. THOMPSON, for the respondent.
This cause presents some close questions, and it is not without hesitation that we have arrived at the conclusions announced in this opinion.
The appellants are garnishees on attachment proceedings brought against one Wm. V. Kay, as indorser of two notes of the Missouri Cotton Seed Oil Company. The notes which were made by Kay as president of the company bore date November 13, 1880, and were payable sixty days after date. The indebtedness evidenced by them originated in November, 1879, and January, 1880.
The garnishees, who are attorneys at law, answering plaintiff's interrogatories, denied any indebtedness on their part to Wm. V. Kay, but admitted that at the date of the service of the garnishment, they did hold a check for $10,000, since cashed, as proceeds of certain notes secured by deed of trust on the property of the Missouri Cotton Seed Oil Company, which notes they had received as attorneys from the agents of one Mary A. Tilden and one Jane G. Kay. They averred that said notes had been the sole, separate, and individual property of said parties in the proportion of $3,000 for Mrs. Tilden and $7,000 for Mrs. Kay, and that the debtor and defendant in the attachment suit, Wm. V. Kay, had no interest therein.
This answer was denied by plaintiff, the denial asserting that the money consideration of these notes secured by trust deed was furnished by defendant Kay. The denial further stated that Kay, being insolvent and intending to cheat and defraud his creditors, had pretended to transfer these notes to the agents of Jane G. Kay, his wife, and Mary E. Tilden, a relative.
Plaintiff's denial was contradicted by reply. The reply stating, among other things, that the garnishees had since the service of the writ upon them, parted with some of the funds, but had retained sufficient to cover plaintiff's claim.
The cause was tried by a jury upon these pleadings. Plaintiff gave evidence, showing that in the fall of 1880 Wm. V. Kay, the debtor, kept an account in his own name with the Bank of Commerce in the city of St. Louis; that on that account he deposited November 5, $5,000; November 8, $5,000; December 7, $375; December 15, $500, and December 16, $500, all in the year 1880. That $10,000 of this money, or thereabout, was loaned to the Missouri Cotton Seed Oil Company, and checked out by Wm. V. Kay's individual checks. That the company had on the 28th day of October, 1880, executed a deed of trust on its property to secure four notes, all bearing date October 27, 1880, and all payable six months after date, two of said notes being for $2,000 each and two for $3,000 each, which notes were payable to Wm. V. Kay, president, and were delivered to him, as security for the advances made, as above stated. That the deed of trust was not recorded until January 15, 1881. That the notes so made were the notes which subsequently came to the hands of the garnishees. Plaintiff also gave some testimony tending to show that Wm. V. Kay was in the latter part of 1880 in embarrassed circumstances, and probably insolvent.
The judgment, recovered by the plaintiff against Kay in the attachment suit, was also put in evidence. This being all the testimony for plaintiff, the garnishees demurred by instruction, but their instruction was refused.
The garnishees thereupon called Wm. V. Kay, the debtor, who testified in substance, that $10,000 of the money deposited by him with the Bank of Commerce, in November, 1880, was the money of his wife, Jane G. Kay; that he loaned $7,000 of this money, as agent of his wife to the Missouri Cotton Seed Oil Company, and took the notes of said company, and sent and delivered three of them, amounting to $7,000 to his wife. That the $10,000 above mentioned were part proceeds of sale of some real estate which his wife had owned in Lake Forest, Illinois, and which she had sold in November, 1880. That Mrs. Kay had instructed him to lend the money to the Missouri Cotton Seed Oil Company. That he had loaned $3,000 of the money of Mrs. Tilden to the company prior to this time, and gave to Mrs. Tilden one of the $3,000 notes secured by trust deed as security.
On cross-examination witness stated that the property at Lake Forest, Illinois, sold by his wife, had at one time stood in his own name. That in March or April, 1878, he transferred it to his son, Wm. G. Kay, who shortly thereafter transferred it to his, defendant's, wife. That the property stood in his wife's name for two years before she sold it in the fall of 1880. That he was solvent at the date of the transfer of the property to his son and wife, and that his embarrassments came from the failure of the oil company in the early part of 1881. The manner of the witness, testifying, as far as preserved in the record, was such, as might have affected his credit with the jury, under the particular circumstances surrounding these transactions.
One of the garnishees then testifed that the notes were placed in the hands of his firm for collection by Wm. G. Kay, the son of the attachment debtor, who stated at the time that one note for $3,000 belonged to Mrs. Tilden and the others to his mother Jane G. Kay. The witness had no personal conference with these clients, and could not say whether he ever had received any written instructions from either of them.
This was in substance all the testimony bearing upon the instructions of the court.
At the close of the entire testimony, the garnishees again demurred by instruction, and the court again refused that instruction, but gave all other instructions asked by them.
There was no error in the action of the court in...
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