Butler County v. Boatmen's Bank

• Decision Date: 23 February 1898
• Citation: 143 Mo. 13,44 S.W. 1047
• Parties: BUTLER COUNTY v. BOATMEN'S BANK.
• Court: Missouri Supreme Court

44 S.W. 1047

143 Mo. 13

BUTLER COUNTY v. BOATMEN'S BANK.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

COUNTIES — FUNDING BONDS — DEPOSIT WITH BANK — AUTHORITY OF FINANCIAL AGENT — NOTICE OF LIMITATION — DECLARATION OF LAW.

1. The declaration of law given at defendant's request, in a trial by court, that "under the pleadings and evidence in the case the plaintiff is not entitled to recover," does not involve any finding of fact against plaintiff.

2. A bank, with knowledge of the order of the county court for issue of bonds to refund certain old bonds, appointing the county treasurer as financial agent, defining and limiting his authority to making a contract with W. for the sale of the bonds, or exchange thereof for the old bonds, to receiving the bonds from the county clerk and having them registered and delivered to said bank, and defining the authority and duty of the bank to deliver the bonds to W. on payment to it, for the county, of the par value thereof in money or the old bonds, and directing that, if any cash is paid, it shall apply same to payment of the old bonds when later presented, is responsible to the county for the cash if, instead of keeping it for the old bonds, or turning it over to the county, it paid it on the check of the treasurer, who applied same to payment of his official defalcations, or other obligations.

3. A county court, being authorized by statute, in funding bonds, to appoint a financial agent with authority to perform any or all duties in connection therewith except that of issuing the bonds, one dealing with such agent should not be charged with limitations on his authority, imposed by the county court in the exercise of its discretion.

Appeal from St. Louis circuit court.

Action by Butler county against the Boatmen's Bank. Judgment for defendant. Plaintiff appeals. Reversed.

W. E. Renfro and E. R. Lentz, for appellant. Boyle, Priest & Lehmann, for respondent.

MACFARLANE, P. J.

This is an action to recover a balance of $6,722.50, alleged to be due the county of Butler from defendant, a savings bank, on account of a special deposit therein of the sum of $30,933 cash. The petition charges, in substance, that on the 1st day of March, 1890, the plaintiff deposited with the defendant $30,000 of its new 5 per cent. funding bonds, with instructions in writing to the defendant, among other things, to deliver them to Wernse & Dieckman for their face value in cash, and to apply the cash so to be received to the payment of certain 6 per cent. bonds which were on that day said to have been due and payable at the defendant bank. The petition further says that the defendant did deliver said bonds to Wernse & Dieckman, and did receive therefor $30,000; and, further, that the defendant has wholly failed, neglected, and refused to apply the whole of said $30,000 to the payment of said 6 per cent. bonds; and that the defendant has wholly failed, neglected, and refused to account to plaintiff for the amount which it so failed to pay for said 6 per cent. bonds; and plaintiff asks judgment for said balance. There is a second count in the petition, but no claim is now made under it. The answer is a general denial and a plea of payment. The reply is a denial of new matter.

It appears from the evidence that on the 8th day of February, 1890, the county court of Butler county, pursuant to previous steps regularly taken, made and entered of record an order for funding some of its outstanding 6 per cent. bonds, and for the issuance of $30,000 new bonds, bearing 5 per cent. interest. The order, after providing for issuing, signing, and registering the new bonds, appointed Martin Ferguson, county treasurer, as financial agent of the county, and gave him specific authority to enter into a contract on behalf of the county with Wernse & Dieckman, of St. Louis, to furnish the $30,000 necessary to redeem the old bonds. The terms of the instructions to the said Ferguson as financial agent required him to deliver the new bonds to defendant, to be delivered by it to Wernse & Dieckman "upon payment to said bank, for said county, of the par value thereof, in money or an equivalent, or any proportional amount thereof, of the old six per cent. bonds, to take up and retire which these bonds are issued. The county of Butler is further to deposit in the said bank $1,000 in cash, this being the amount of accrued interest on the old bonds at the date on which they are declared to be due and payable, to wit, March 1, 1890." The order further provided that the deposit of said bonds by Ferguson should be accompanied with the following letter of instruction to defendant: "Cashier Boatmen's Savings Bank, St. Louis, Mo. — Dear Sir: We hand you herewith sixty bonds of five hundred dollars each, issued by Butler county, Missouri, bearing five per cent. interest; also $1,000 cash. You will please deliver said bonds to Wernse and Dieckman, or their order, in such amounts as they may elect, in exchange for an equal amount of the six per cent. bonds of the said county, described in the call hereto attached, or for their face value in cash. The $1,000.00 you will please use in paying the interest accrued to March 1, 1890, on the said six per cent. bonds, as presented by the said Wernse and Dieckman. In case of any cash being paid you, you will please apply it to the payment of the said six per cent. bonds when later they are presented. Cancel the six per cent. bonds as they are received, and, when you have the entire $30,000.00, express them as valuable papers to the clerk of this county. The said Wernse and Dieckman will pay you for your services. E. C. Lacks, Presiding Judge of Butler County Court. Attest: W. B. Adams, County Court Clerk." On the 26th day of February, 1890, said county court made the following additional order: "County Compromise Bonds Signed. In compliance with the order of the county court, made on the 8th day of February, A. D. 1890, which order is now complied with by the presiding judge, E. C. Lacks, and the clerk, W. B. Adams, signing sixty (60) five per cent. compromise bonds of five hundred dollars each, with thirty (30) interest coupons thereto attached, and dated March 1, A. D. 1890, made payable March 1, 1920, or at any time after ten years, at the option of the county of Butler. And it is now ordered that the clerk of the county court of, Butler county, Missouri, deliver the said bonds to the county treasurer, Martin Ferguson, and take his receipt for the same." The bonds and a certified copy of these orders were delivered to Ferguson. On the 1st day of March, 1890, the bonds were delivered to the cashier of defendant bank at its place of business in St. Louis. Whether or not the orders of the county court and the letter of instruction were delivered or shown to defendant's cashier is a disputed question. The cashier claims that neither was done. On receipt of the bonds the cashier prepared and Ferguson signed the following letter: "Poplar Bluff, Mo., March, 1890. Boatmen's Bank, St. Louis, Mo.: As will be seen from the advertisement hereto attached (cut from Globe-Democrat to-day's issue), Butler county, Mo., has `called' $30,000 of its outstanding six per cent. 5-20 year `Compromise' bonds (Nos. and denominations as per said advertisement), payable at your bank March 1st, 1890, with the interest from Oct. 1st, 1889, to said date, and it has been agreed between this county and Messrs. Wernse & Dieckman, of your city, that on presentation by them at your counter of said `called' bonds they are to receive in exchange for same an equal amount (say thirty thousand dollars) of five per cent. 10-30 year, Butler county, Mo., funding bonds, together with interest on the said six per cent. `Compromise' bonds from October 1st, 1889, to March 1st, 1890; but, should Wernse & Dieckman deposit with you this day, to the credit of said county, the total sum of $30,000, you are to deliver to them the $30,000 of five per cent. bonds above described, which we herewith deliver to you, — say 60 bonds, $500 each, Nos. 1-60, inclusive, — and you are hereby authorized to pay said six per cent. bonds as presented, whether by Wernse & Dieckman or other persons, face value, together with interest at six per cent. from Oct. 1st, 1889, to March 1st, 1890, and charge these payments to said county as made, and when all six per cent. bonds ($30,000) shall have come into your possession under this arrangement, you will cancel and send them by express, marked `Valuable Papers,' addressed to the clerk of this county, at Poplar Bluff, Mo., unless in meantime I should instruct you differently concerning their return. [Signed] Martin Ferguson, County Treasurer of Butler County." The advertisement referred to in the letter is as follows: "To Butler County (Mo.) Bondholders: Notice is hereby given that Butler county (Mo.) 5-20 year 6 per cent. funding bonds Nos. 293, 294, 295, 296, 308, 309, 310, 312, for $1,000.00 each; Nos. 313 to 342, inclusive, for $500 each; and Nos. 353 to 422, inclusive, for $100.00 each, — are called, and hereby declared due and payable, and will be paid at the Boatmen's Savings Bank, St. Louis, Mo. (where they are payable by their terms), on March 1, 1890, and that interest will cease on that day. By order of the county court. Martin Ferguson, Treasurer of Butler County, Mo." The cashier thereupon delivered to Ferguson the following letter: "St. Louis, March 1st, 1890. Butler County, Mo. — Mr. Martin Ferguson, Treasurer — Dear Sir: I hereby acknowledge receipt, per your own hand, of your letter to us of to-day, together with the $30,000 five per cent. funding bonds therein described, which, under your instructions, we have delivered to Messrs. Wernse & Dieckman, upon payment to us by them of $30,933, which we have placed to your credit on our books. We note your instructions concerning payment of the $30,000 `called' six per cent. bonds, and same shall have due attention. Have...