Boonville Nat. Bank v. Thompson

• Citation: 99 S.W.2d 93,339 Mo. 1049
• Parties: Boonville National Bank, a Corporation, and John T. Carlon, Receiver of Boonville National Bank, a Corporation, Appellants, v. Maud Thompson, as Executrix of the Estate of Milton Thompson
• Decision Date: 17 November 1936
• Court: United States State Supreme Court of Missouri

99 S.W.2d 93

339 Mo. 1049

Boonville National Bank, a Corporation, and John T. Carlon, Receiver of Boonville National Bank, a Corporation, Appellants, v. Maud Thompson, as Executrix of the Estate of Milton Thompson

Supreme Court of Missouri

November 17, 1936

Rehearing Denied August 20, 1936.

Motion to Transfer to Court in Banc Overruled November 17, 1936.

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge; Opinion filed at May Term, 1936, June 30, 1936; motion for rehearing filed; motion overruled August 20, 1936; motion to transfer to Court en Banc filed; motion overruled at September Term, November 17, 1936.

Affirmed.

D W. Shackelford, John H. Windsor and Walter A. Raymond for appellants;

Hume & Raymond of counsel.

(1) Plaintiffs were forced to take an involuntary nonsuit. In passing on the justification for such ruling this court should take plaintiffs' evidence as true and draw all reasonable inferences in their favor. Randol v. Kline's, Inc., 18 S.W.2d 505. (2) This action is in assumpsit for money had and received. It is an action at law but is governed by equitable principles. Whitecotton v. Wilson, 197 S.W. 170; Bank v. Bank, 149 S.W. 495, 244 Mo. 581; Clifford Banking Co. v. Donovan Comm. Co., 195 Mo. 262, 94 S.W. 535; Bisesi v. Farm & Home S. & L. Assn., 78 S.W.2d 872; Doerner v. St. L. Crematory & Mausoleum Co., 80 S.W.2d 723; Paxston v. Loan Co., 297 S.W. 122; Linn County Bank v. Clifton, 263 Mo. 200, 172 S.W. 391. (3) The Nixon-Thompson Mining Company, of which Milton Thompson was a partner, received the money of plaintiff bank and was thereby unjustly enriched. (a) Assumpsit for money had and received is maintainable. Whenever defendant has received plaintiff's money which he is obliged by natural justice to refund. The form of the indebtedness or the mode in which it is incurred is immaterial. Chandler v. Wilder, 110 So. 307; Great So. Acc. & Fid. Co. v. Guthrie, 13 Ga.App. 288, 79 S.E. 162; Lightfoot v. King, 25 Ga.App. 80, 102 S.E. 468; Duncan v. Anderson, 250 P. 1019; Bayne v. United States, 93 U.S. 643; United States v. State Bank, 96 U.S. 35; Bull v. United States, 55 S.Ct. 700; Third Natl. Bank v. St. Charles Savs. Bank, 149 S.W. 495, 244 Mo. 586; York v. Farmers Bank, 79 S.W. 968, 105 Mo.App. 127. (b) Defendant's partner, Nixon, and their joint agent, Turner, received the money sued for on behalf of the Nixon-Thompson Mining Company. The presumption is all such money went into the Nixon-Thompson Mining Company. Nelson v. Jones, 245 Mo. 179, 151 S.W. 82; State ex rel. Detroit Fire & Marine Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 26; Brigham City Fruit Growers' Assn. v. Zollmann Produce Co., 220 S.W. 916. (c) The Nixon-Thompson Mining Company was a commercial partnership. Sec. 965, R. S. 1929; Snyder v. Burnham, 77 Mo. 54; Freeman v. Hemenway, 75 Mo.App. 616; Thompson v. Crystal Springs Bank, 21 F.2d 605; Decker v. Howell, 42 Cal. 641; Daily v. Fitzgerald, 125 P. 631. (d) Nixon and Turner were authorized to borrow money on the credit of the partnership, Nixon-Thompson Mining Company. Each partner is liable for the full amount advanced for the partnership whether it actually went to the use of the partnership or not. 47 C. J. 864, sec. 339; Commerce Trust Co. v. McMechen, 220 S.W. 1020; 47 C. J., p. 847, sec. 311, p. 849, sec. 312; Bredel v. Parker-Russell Min. & Mfg. Co., 21 S.W.2d 935; Mead v. South Side Bank, 14 S.W.2d 667; Thornhill v. Masucci, 216 S.W. 821; Chandler v. Wilder, 110 So. 308; Great So. Acc. & Fid. Co. v. Guthrie, 13 Ga.App. 288, 79 S.E. 162; Lightfoot v. King, 25 Ga.App. 80, 102 S.E. 468; Cannon v. Wing, 129 S.W. 719; Hartz v. Page, 20 S.W.2d 704; Sanders v. Sheets, 287 S.W. 1071; Bank v. Bank, 244 Mo. 554, 149 S.W. 495; Bank v. Lyons, 220 Mo. 538, 119 S.W. 540. (e) The facts required submission to the jury on the issue of whether Milton Thompson ratified the acts of E. B. Turner. Scrivner v. Am. Car & Foundry Co., 50 S.W.2d 1013; Madison v. Williams, 16 S.W.2d 629; Cut Rate Woolen Co. v. U.S. Tailoring Co., 267 S.W. 971. (4) In equity and good conscience the defendant ought to pay over to the plaintiffs the money which the Nixon-Thompson Mining Company received from the plaintiff bank. (a) Thompson placed Turner and Nixon in the position to obtain the money of plaintiff bank and in equity and good conscience he should bear the loss. Baade v. Cramer, 278 Mo. 516, 213 S.W. 126; New York Indemnity Co. v. Andrew County Bank, 59 S.W.2d 743; Klebba v. Struempf, 23 S.W.2d 207. (b) Plaintiff bank had no authority or right to superintend the expenditure of the money Nixon obtained from Thompson. It did not participate or obtain any benefit from any alleged diversion of such funds and did not know of said diversion but was entirely innocent in the matter. Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 761; Clarke v. Public Natl. Bank, 259 N.Y. 285, 181 N.E. 575; Board of County Comm. v. State Bank, 36 P.2d 284; Empire Trust Co. v. Cahan, 274 U.S. 473, 47 S.Ct. 662; Griffin v. Natl. Bank of Commerce, 246 S.W. 180; State v. Chicago Bonding & Surety Co., 215 S.W. 24; McCullam v. Third Natl. Bank, 209 Mo.App. 266, 237 S.W. 1055; Sec. 2838, R. S. 1929; Farmers' Bank of Deepwater v. Moberly, 78 S.W.2d 908; Wichita Royalty Co. v. City Natl. Bank, 74 S.W.2d 668.

Alfred M. Seddon, Charles M. Bush and Ryland, Stinson, Mag & Thompson for respondent.

(1) Plaintiffs' fourth amended petition stated a cause of action for money loaned and is a departure from the original petition, which stated a cause of action for money had and received. Therefore, the filing of the fourth amended petition constituted a new suit, claim, or demand against the estate of Milton Thompson, deceased, and is barred by the nonclaim statute. Defendant executrix cannot waive the bar of the special Statute of Limitations. Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668; Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56; Bank of Missouri v. Scott, 1 Mo. 744; Union Natl. Bank v. Lyons, 220 Mo. 567; 41 C. J., p. 68, sec. 75; Scarborough v. Blackman, 108 Ala. 656, 18 So. 735; Wiggins v. Greene, 9 Mo. 266; Cape Girardeau County v. Harbison, 58 Mo. 95; Bambrick v. Bambrick, 157 Mo. 436; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Woerner on American Law of Administration (3 Ed.), sec. 402; 24 C. J. 370. (2) The evidence herein wholly fails to support a cause of action for money had and received. Proof of money loaned constitutes a variance and will not permit a recovery under a petition for money had and received. 41 C. J., pp. 42, 43, secs. 25, 26, p. 49, sec. 35, p. 53, sec. 44, p. 68, sec. 75; Ford-Davis Mfg. Co. v. Maggee, 233 S.W. 269; Walmsley v. Stowell, 174 Mo.App. 67; Bank of Missouri v. Scott, 1 Mo. 744; Scarborough v. Blackman, 108 Ala. 656, 18 So. 737. (3) Likewise, the evidence was wholly insufficient to entitle plaintiff bank to recover from the defendant upon the claim or theory of money loaned by the Boonville National Bank, for there was no sufficient or substantial evidence that the loan was made to the alleged partnership, Nixon-Thompson Mining Company. Farmers' Bank v. Bayless, 35 Mo. 438, Id. 41 Mo. 288; Redenbaugh v. Kelton, 130 Mo. 558; 47 C. J., p. 872, sec. 345. (4) There was no substantial evidence that Milton Thompson was a partner of C. W. Nixon and Emil B. Turner in the alleged mining venture. Hely v. Hinerman, 303 Mo. 173; Wittling v. Schreiber, 202 S.W. 420; Wegman v. Joseph, 191 S.W. 1076; Ellis v. Brand, 176 Mo.App. 383. (5) If there be any substantial evidence of a partnership relation between Thompson, Nixon and Turner, then at most the evidence merely tends to show that they were engaged in a nontrading and noncommercial enterprise. One partner, or the agent of one partner, in a nontrading partnership has no right or authority in law to bind the partnership or any other member thereof. 47 C. J., pp. 828, 829, sec. 291; 22 Am. & Eng. Ency. of Law (2 Ed.), p. 231; 40 C. J., p. 1148, sec. 801; Webb v. Allington, 27 Mo.App. 568; Deardorf v. Thacher, 78 Mo. 128; Randall v. Lee & Randall, 68 Mo.App. 566; Third Natl. Bank v. Faults & Co., 115 Mo.App. 42; Shaw v. Gunby, 188 Mo.App. 659; Powell Hdw. Co. v. Mayer, 110 Mo.App. 14.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This suit was brought originally by the Boonville National Bank against Milton Thompson, for money had and received. Thereafter the bank went into receivership, the receiver being made party plaintiff. Thompson died and his widow as executrix was made party defendant. Amended petitions were filed from time to time, the case being finally tried on the fourth amended petition. The trial was to a jury. At the close of the plaintiffs' evidence plaintiffs took a nonsuit with leave to move to set the same aside. Such motion was duly filed, was overruled by the court and plaintiffs appealed. Respondent has filed here a motion to dismiss the appeal, contending that the nonsuit was voluntary, hence that no appeal lies therefrom. Appellant contends that the nonsuit was involuntary. If so the appeal was properly taken. A final judgment of dismissal was duly entered. Before proceeding to the merits of the case we shall dispose of the motion to dismiss the appeal.

The record before us shows that at the close of plaintiffs' evidence "the defendant requested the court to give an instruction in the nature of a demurrer to the evidence. The court marked the same 'given,' to which plaintiffs excepted, and thereupon and before said instruction was read to the jury, plaintiffs, deeming the ruling of the court precluded them from recovery, suffered and took an involuntary nonsuit with leave to move to set the same aside." Said instruction was a peremptory direction requiring the jury to find for the...