Byrd v. Webb City Bank

• Decision Date: 31 May 1912
• Parties: BYRD v. WEBB CITY BANK et al.
• Court: Missouri Supreme Court

149 S.W. 31

BYRD v. WEBB CITY BANK et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

Rehearing denied July 11, 1912.

1. JUDGMENT (§ 238) — EFFECT — JOINT DEFENDANTS.

In an action against a bank to compel the payment of money deposited with it to obtain the delivery of a mining lease deposited by plaintiff in escrow with the bank, where the plaintiff also made the depositor of the money a party defendant, a judgment against the defendant bank cannot be reversed because not against the depositor, where the depositor at trial disclaims any right to the money.

2. ESCROWS (§ 10) — DUTY OF DEPOSITARY — ESTOPPEL TO DENY.

Where a bank, after refusing to accept a written trust for the delivery of contracts and agreements deposited in escrow, accepted the trust by parol and performed it as to one of the parties, it is estopped from denying the validity of the trust as to the other party.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Charles A. Byrd against the Webb City Bank and others. From a judgment against the defendant named, it appeals. Affirmed.

While much of the testimony in this case was parol, and given by two witnesses for the plaintiff and two for the defendant, nevertheless, there is no dispute between the parties touching the real facts of the case. They are correctly and substantially stated by counsel for the plaintiff in the following language:

"The plaintiff was the owner of a tract of land in Jasper county, Mo., on which the defendant Davis had been mining for lead and zinc ore under a mining lease. Davis had been unfortunate in his mining operations, and had expended all of his capital and had also failed to comply with the terms of the lease, and the same was subject to forfeiture, and notice thereof had been given. While the matter stood in this situation, Davis applied to the plaintiff for a new lease, and told him that he had expended all his money on the property, and was down and out, and, unless the plaintiff would give him a new lease, he would lose all he had expended in mining on the plaintiff's land; that, if plaintiff would give him a new lease, he believed he could sell the same to a Mr. Glass and his sons for $30,000, and out of this purchase money the plaintiff should have $10,000 as a bonus.

"The plaintiff, not being willing to trust the defendant Davis with a delivery of the lease to him so that he could dispose of it, agreed that he would execute the new lease and deposit the same with the defendant bank, to be delivered when the purchase money was paid, so that he would be protected in the receipt of his $10,000. The plaintiff was a customer of the appellant bank, and, before any papers were executed or deposited, visited the bank and explained to the officers what he contemplated doing, and was notified that it would be all right with the bank, and that the latter would carry out the arrangement.

"The new lease was executed, and also a contract between the Glasses and Davis for the purchase of the lease, and a quitclaim deed from Davis to the Glasses for the purpose of assigning the lease to the Glasses, and all were deposited in escrow with the appellant bank; the lease and quitclaim deed to be delivered to the Glasses when the payments were made according to the terms of the contract, and, if the Glasses failed to make the payments, then the lease was to be returned to the plaintiff.

"No mention was made in the contract or lease that plaintiff was to have $10,000 out of the funds paid by the Glasses for the lease. This was omitted at the request of. Davis, who stated lie did not want the Glasses to know how the purchase money was to be divided.

"After the papers had been executed, the Glasses, together with the plaintiff and the defendant Davis, appeared at the bank in accordance with the previous arrangement made with the bank by plaintiff, and stated that they desired to leave the papers in escrow. At this time the plaintiff had in his possession two orders executed by Davis in duplicate directing the bank to pay to the plaintiff, out of the money it received from the Glasses, $10,000. These orders were not presented to the bank in the presence of the Glasses, but, immediately after the Glasses left the bank, the plaintiff and defendant Davis returned to the bank and delivered to the assistant cashier the orders, and who wrote upon the copy the following words, `original deposited with the Webb City Bank, May 11, 1907. H. L. Rose, Assistant Cashier,' and returned to plaintiff the copy on which he had so written, but kept the other and deposited it with the escrow papers.

"Some time after the bank closed, but on the same day, the plaintiff appeared at the bank with Mr. Robertson, his...