Citizens' State Bank of Atlanta, Kan. v. Person

• Decision Date: 06 January 1919
• Docket Number: No. 12942.,12942.
• Parties: CITIZENS' STATE BANK OF ATLANTA, KAN., v. PERSON.
• Court: Missouri Court of Appeals

208 S.W. 136

CITIZENS' STATE BANK OF ATLANTA, KAN., v. PERSON.

No. 12942.

Kansas City Court of Appeals. Missouri.

January 6, 1919.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by the Citizens' State Bank of Atlanta, Kansas, against W. A. Person, begun in the justice court and appealed to circuit court. Judgment of the circuit court for plaintiff, and defendant appeals. Affirmed.

Humphrey, Boxley & Reaves, of Kansas City, for appellant.

W. F. Zumbrunn, of Kansas City, for respondent.

BLAND, J.

This is a suit for the conversion of two carloads of hay. The case was tried by the court without the aid of a jury and resulted in a judgment for plaintiff, and from this judgment defendant has appealed.

The facts show that during the month of January, 1916, one Robinson shipped two carloads of hay from Latham, Kan, to the Ernst Hay & Grain Company, at Kansas City, Mo. These shipments were covered by two bills of lading to shipper's order allowing inspection on the part of the consignee. Robinson drew two drafts on Ernst Hay & Grain Company and in favor of plaintiff bank, aggregating the sum of $164.85, and attached the same to the bills of lading and mailed the drafts and bills to plaintiff with instructions to place the drafts to his credit. Robinson was a customer of the bank and had a small deposit there at the time. The bank made out a deposit slip in favor of Robinson in the sum mentioned, less a charge of 50 cents per car to cover discount and interest on the money during the time of collection. The bank, by post card, thereupon acknowledged receipt of the drafts. There is an inference in the evidence that Robinson later drew from the bank the money covered by these drafts.

On January 22, 1916, several days after the transactions heretofore mentioned, W. A. Person, defendant herein, brought suit against Robinson before a justice of the peace in Kansas City, Mo., and caused a writ of attachment to be issued and levied upon the two cars of hay which had reached Kansas City, as the property of Robinson. The hay was sold under this writ, and Person's demand and the costs of suit were satisfied out of the proceeds of the sale; a small balance going to plaintiff bank. This suit was originally brought in a justice court to recover the value of the hay, plaintiff alleging in its statement filed before the justice that it became the owner of the drafts and hay at the time the bills of lading and drafts were turned over to it.

Defendant urges that the court erred in refusing his declaration in the nature of a demurrer to the evidence, defendant claiming that the evidence fails to show that plaintiff was the owner of the drafts when the attachment suit was filed. This contention is based upon the fact that the Ernst Hay & Grain Company notified Robinson of the attachment of the hay; that the former received a telegram from attorneys for Robinson (who were afterwards the bank's attorneys as well) asking details of the attachment; that the bank's present attorney investigated the records in the justice court shortly before the sale under the attachment; that the constable received an order from Robinson directing that the proceeds of sale be paid over to plaintiff bank and on account of conflicting evidence to which we hereinafter allude.

There was nothing in these acts inconsistent with the claim of the bank that it became the owner of the drafts and hay when the former was delivered to It. Robinson was certainly interested in the suit against him, whether he was or was not the owner of the hay. He was the maker and indorser of the drafts and was liable to the bank in case Ernst Hay & Grain Company dishonored them, which it did. So he was interested in seeing that nothing should happen to the hay and drafts. It was natural for Robinson to give an order to the constable to pay the net proceeds of the sale to the bank. The bank was the owner of the hay, but the records of the justice court show only Robinson as the owner, so, naturally, the constable would require an order to pay the proceeds to another.

The assistant cashier testified that the drafts carrying the bills of lading covering the hay were purchased from Robinson and that his account was credited with the amount thereof. In another part of his deposition he testified that "we took them with the intention to collect," and that Robinson was given credit on the strength that the sight drafts would be paid and that the 50 cents per car charged Robinson by the bank was collection charges on the drafts. There was also evidence that the bank tried to charge back to Robinson the amount of these drafts, but that he objected.

The question as to whether the drafts were deposited for collection only or for credit is one of agreement between the bank and the depositor. Mudd v. Bank, 175 Mo. App. loc. cit. 403, 162 S. W. 314; Bank v. Refrigerator Co., 236 Mo. loc. cit. 415, 416, 139 S. W. 545. In some cases it is held that if the draft or deposit is entered as a...