Cantrell v. Davidson
| Decision Date | 01 June 1914 |
| Citation | 168 S.W. 271,180 Mo.App. 410 |
| Parties | G. E. CANTRELL, Respondent, v. HARRY DAVIDSON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Hon. A. A. Whitsett, Judge.
AFFIRMED.
Judgment affirmed.
Smith & Chastian for appellant.
(1) Payment of a debt once made, and by whomsoever made discharges the debt except there be some legal fact which authorizes the party making the payment to do so on behalf of the obligor. II Daniel Netotiable Instruments, Sec. 1222; Wolff v. Walter, 56 Mo. 292; Vansandt v. Hobbs supra; Bunn v. Lindsay, 90 Mo. 252; Crane v Neal, 103 Mo.App. 122; Bell Telephone Co. v. Hannil, 153 Mo.App. 405. (2) The court erred in giving instruction No. I, on behalf of plaintiff, in submitting to the jury the question as to whether or not plaintiff was the owner of the note in suit, since that, under the evidence, was, if not a pure question of law, a question of mixed law, a fact which should not have been submitted to the jury for its determination. Speak v. Ely & Walker Dry Goods Co., 22 Mo.App. 122; Stevens v. Crane, 37 Mo.App. 495; W. W. Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 589; Carroll v. Campbell, 110 Mo. 570.
Jas. S. Brierly, Silvers & Silvers for respondents.
(1) Every bank officer including every director is an agent for the bank; and the acts of such are corporate acts. 5 Cyc. 457 (4); State Bank v. Senecal, 13 La. 525; State Bank v. Commercial Bank, 45 Am. Dec. 280 (Miss.). (2) A bank is charged with a knowledge acquired by its president or other officers pertaining to transactions within the scope of the bank's business. 5 Cyc. 460; Hickman v. Green, 123 Mo. 176; Bank v. Lovitt, 114 Mo. 525. Where a bank accepts and retains the benefit of an officer's act it is bound by the transaction of such officer. Bank v. Bank, 107 Mo. 145; Akers v. Ray Co. Savings Bank, 63 Mo.App. 316; Bates v. State Bank, 2d Ala. 451.
This suit is on a promissory note for $ 1316.18 payable to Adrain State Bank, and bearing the names of Harry Davidson and Mary E. Davidson as payers. The latter is the wife of the former, and, originally, the suit was against both; but the wife filed a plea of non est factum, whereupon suit was dismissed as to her.
The petition alleged the execution of the note; that payments had been made thereon aggregating $ 489.32; that it had been assigned, transferred and delivered to plaintiff; and that he is the owner of the same.
Defendant, Harry Davidson's answer admitted that he executed the note; that the payments set forth in the petition had been made thereon and that still other payments had been made by which the note was fully paid and discharged. The answer then denied that the note was ever assigned to plaintiff and denied plaintiff's ownership thereof.
The reply was, at first, a general denial. But after the trial commenced, plaintiff, over the objection of defendant, filed an amended reply in which payment of the note was denied, and then set up the following facts: That in August, 1911, (long prior to the date of the filing of the petition), plaintiff was cashier of the Adrian State Bank; that the note in suit was not considered by the officers and directors of said bank a good note and they required plaintiff to account to said bank therefor; that plaintiff agreed to pay the bank the amount of said note in consideration of which the bank agreed to transfer and deliver said note to plaintiff; that pursuant to said agreement, he paid the bank the amount of the note which the bank accepted, and the note was transferred and delivered to him with the knowledge and consent of the officers and directors of said bank; that previous to this the note had been endorsed as follows: "Adrian State Bank by G. E. Cantrell, cashier;" that no other endorsement was made on the note; that upon payment by him as aforesaid a settlement was made between him and the bank and he resigned as cashier in August, 1911, and thereupon the note in question was delivered to him and he has had the custody thereof ever since, and the bank has recognized the validity of the transfer to plaintiff and of his title to said note.
A motion was filed to strike out this new matter which the court overruled.
Evidence was offered tending to fully support plaintiff's claim as to how he obtained title to and possession of the note, and no evidence to the contrary on this point was shown. The evidence offered by defendant bore on the issue as to whether or not the note had been paid and discharged. The jury found that it had not, and returned a verdict for plaintiff for the balance due on the note.
It is contended that the court erred in allowing the amended reply to be filed and in not sustaining defendant's motion to strike it out. There was no error in allowing it to be filed after the trial had begun. [Sheehan etc. Co. v. Sims, 36 Mo.App. 224; Turner v. Butler, 126 Mo. 131, 28 S.W. 77.] Section 1809, Revised Statutes of Missouri, 1909, provides that a plaintiff may, in a reply, "allege in ordinary and concise language and without repetition any new matter not inconsistent with the petition, constituting a defense to the new matter in the answer." Of course a reply which sets up a new cause of action or an additional cause of action, or which supplies a material allegation omitted from the petition, cannot be permitted. But the amended reply did none of these. The petition alleged a cause of action in plaintiff on the note. The amended reply was directed toward the same cause of action; and, so far from being inconsistent with the petition, it merely set up the facts showing in what manner plaintiff became and was the owner and holder of the note as alleged in the petition. If the facts alleged in the petition and in the amended reply did not constitute a cause of action no demurrer was filed to either the petition or the amended reply. But the issues raised were litigated and submitted to the jury, and, after verdict, the petition should receive every reasonable intendment in its favor.
The main contention of defendant is that its demurrer to the evidence should have been sustained because the endorsement of the note and the transfer and delivery thereof to the plaintiff was not authorized by a formal resolution of the board of directors, as provided by Section 1112, Revised Statutes of Missouri, 1909. That section provides that "The cashier . . . shall have no power to endorse, sell, pledge or hypothe-cate any notes . . . received by said corporation for money loaned, until such power and authority shall have been given such cashier . . . by the board of directors, in a regular meeting of the board, a written record of which proceeding shall first have been made."
Plaintiff says this statute has no application to the facts of this case. He does not claim title to the note by virtue of the endorsement "Adrian State Bank by G. E. Cantrell, cashier," made by himself while he was cashier. That endorsement was not placed there for the purpose of transferring the note to himself. Prior to any negotiations between himself and the bank, it was decided to send the note to the Farmer's Bank of Bates county, Missouri, at Butler for collection, and the endorsement was placed thereon at that time. It was not sent to that bank, however, but instead was sent for collection to Mr. Silver, an attorney at Butler. In some way, though, the amount of the note was charged on the books against the Butler bank as if it had been sent to that bank; and another amount of $ 1000 was also charged against the Butler bank which should have been charged elsewhere, making somewhere in the neighborhood of $ 2300 which the books showed was held by the Butler bank but which in fact it did not hold.
It seems that after this and shortly prior to August, 1911, the Adrian State Bank discovered that there were certain shortages in its assets and also bad notes taken while plaintiff was cashier, all of which amounted to $ 7200 in round numbers. Plaintiff was required to make this $ 7200 good, and, through the help of his father, did so. Pursuant to an agreement and arrangement made between plaintiff and the bank, with the knowledge and consent of all its officers and board of directors, this $ 7200 deficit was paid by plaintiff to the bank, and, under the terms of the settlement, all notes going to make up the $ 7200 were to be turned over to plaintiff. In this $ 7200 deficit was included the $ 2300 deficit on account of the Butler bank not owing said amount as the Adrian Bank books showed it did. And the amount of the note in suit was included in and went to make up this $ 2300 as hereinbefore stated. There is some question in the testimony whether the note in suit was mentioned specifically as being one of those to be turned over to plaintiff, but there is evidence tending to show that it was. It is undisputed, however, that, in consideration of the Adrian State Bank being paid this $ 7200 by plaintiff, it was agreed that all notes included in the amount of said deficit should be turned over to plaintiff and this agreement was made with the officers and directors of the bank and with their full knowledge and consent. The note in suit, at the time of the settlement and payment of said $ 7200, and the resignation of plaintiff as cashier, was in the hands of Mr. Silver to whom it had previously been sent for collection. The settlement and resignation of plaintiff as cashier occurred August 28, 1911, and some three weeks after that, Silver returned the note to the bank and it in turn delivered it to plaintiff. Thereafter this suit was brought.
It was clearly shown and not disputed that the bank makes no...
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