Citizens' Trust Co. v. Tindle

• Decision Date: 24 April 1917
• Docket Number: No. 2025.,2025.
• Citation: 194 S.W. 1066
• Parties: CITIZENS' TRUST CO. v. TINDLE et al.
• Court: Missouri Court of Appeals

194 S.W. 1066

CITIZENS' TRUST CO. v. TINDLE et al.

No. 2025.

Springfield Court of Appeals. Missouri.

April 24, 1917.

Rehearing Denied May 21, 1917.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Citizens' Trust Company, receiver of the Pemiscot County Bank, against A. C. Tindle and others. Judgment for defendant Coppage and for plaintiff against other defendants, and plaintiff appeals. Reversed and remanded.

C. G. Shepard, of Caruthersville, for appellant. Ward & Reeves, of Caruthersville, for respondent Coppage.

FARRINGTON, J.

The plaintiff appeals from a judgment rendered in favor of defendant Coppage alleging error in the instructions given on behalf of defendants and in the admission of testimony. The principal contention goes to the instructions complained of, and, as we are of the opinion they were erroneous, we will confine the discussion of the case to the law and facts pertaining to this contention.

The petition is based on a promissory note dated February 15, 1913, for the sum of $2,040, payable, on demand, bearing interest at 6 per cent., signed Concord Mercantile Company, by W. H. Johnson. A. credit of $353.04 had been given, and judgment for $1,741.36 with interest was asked. The petition alleges that the Citizens' Trust Company is a corporation and the receiver of the Pemiscot County Bank, which had liquidated because of defalcations made by its cashier, A. C. Tindle, further, that A. C. Tindle, W. H. Johnson, and R. F. Coppage were partners doing a general merchandise business under the style and firm name of Concord Mercantile Company, and that the note sued on was a promise to pay to the Pemiscot County Bank the sum of $2,040, and judgment is asked against the members of this alleged partnership. Judgment was given against Tindle and Johnson, but in favor of Coppage, the other alleged partner, and it is because of the judgment for Coppage that plaintiff appeals.

Defendant Coppage filed an answer denying generally the allegations of the petition, and denying that he was a member of the partnership on the 15th day of February, 1913, and denying that Tindle or Johnson or any one for the Concord Mercantile Company had authority to execute any note that would bind him. He alleged that the Concord Mercantile Company had been formed, consisting of Tindle, Johnson, and himself, but that said firm had dissolved business on the 12th day of February, 1912, more than a year prior to the execution of the note in suit, and that said firm was not engaged in any business, and that its entire stock of goods had been sold to one Harry Henderson, who had for more than a year operated the store formerly owned by the Concord Mercantile Company. The answer further alleges that the business of the Pemiscot County Bank had been managed in such a way by its officers that when it closed its doors and an examination was made of its affairs it was found that the books of the bank had in many particulars been purposely kept so as not to disclose the true condition of its accounts, and that a large number of notes aggregating from $80,000 to $100,000 in amount were found in the bank, having been placed there by friends of the defaulting cashier, for which there was no consideration whatever, and which were merely held by the cashier in the bank for the purpose of deceiving bank examiners.

The evidence discloses that the Concord Mercantile Company, composed of Tindle, Johnson, and Coppage, bought a general store in a small town seven or eight miles from Caruthersville, the home of the Pemiscot County Bank and the Citizens' Trust Company, that this store was conducted for about one year, and that the defendant Coppage was one of the managing partners. In February, 1912, the firm sold the stock of goods to the same person from whom it had been purchased, and this purchaser executed to the firm a note for $3,750, and, so far as it appears from this record, this disposed of all the assets and business of the partnership except the collection of the notes and accounts due the partnership and the payment of debts due creditors of the firm; it being agreed among the partners that these accounts and notes due the firm and the payment of the debts be taken in charge by Johnson. He became bookkeeper in the Pemiscot County Bank, so that the affairs of the partnership in reducing its uncollected assets to cash and the payment of its creditors was carried on in the Pemiscot County Bank, where, as stated, Tindle, one of the partners, was cashier, and Johnson, another partner, was bookkeeper.

Evidence introduced by plaintiff — the records of the bank — tends to show that a note for $2,000 was made on July 15, 1912, by the Concord Mercantile Company, and that on August 21st thereafter there was deposited to the credit of the Concord Mercantile Company the sum of $2,000, the deposit slip being marked, "Concord Mercantile Co., 8-21 —12, note $2,000." The entry on the register of the bank was, "July 15, No. 11585," and the serial number of the note sued on which was given in February subsequent to July 15, 1912, was No. 11880. Plaintiff's evidence tended to show the total amount of the deposits placed to the credit of the Concord Mercantile Company, including a deposit and credit of $2,000 on August 21, 1912, and also showed all except about $105 of the checks drawn on this account by the Concord Mercantile Company, practically all of which were drawn and paid by Johnson, one of the partners. We think it is clearly inferable from the evidence that the Concord Mercantile Company received credit for $2,000 on the bank books and actually used that money in the payment of its debts, the deposit being made August 21, 1912.

The evidence further shows that Tindle, the cashier, and a partner in this firm, in February, 1913, wrote out the note herein sued on for $2,040 and handed it to Johnson, who was not then connected with the bank, as we gather from the testimony, and had Johnson sign the note, "Concord Mercantile Co., by W. H. Johnson." And as the evidence fails to show that the bank ever received any credit for a note of $2,000 or $2,040 in February, when the note sued on was given and as it bears a subsequent serial number to the one given in July, we think this is evidence...