Coleman v. Lipscomb

• Decision Date: 15 June 1885
• Parties: JOHN H. COLEMAN, Respondent, v. NATHAN LIPSCOMB, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 443

JOHN H. COLEMAN, Respondent, v. NATHAN LIPSCOMB, Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, J.

Affirmed.

The case is sufficiently stated in the opinion of the court.

LIPSCOMB & RUST, for the appellant.

I. What was the contract between plaintiff and defendant, the latter being the gratuitous bailee of the former? His legal obligation is to pay or deliver the thing bailed on demand, or render a valid excuse for non-payment or non-delivery. No demand was made here until after failure of the bank.

II. There was no conversion in this case by the deposit of this with other money, in the bank; and, therefore, the relation of debtor and creditor did not exist. Niemetz v. St. L Ag. Ass'n., 5 Mo.App. 59; Sparks v. Purdy, 11 Mo. 219; Williams v. Wall, 60 Mo. 321; McCormick v. Gilliland, 76 Mo. 655; Magum v Bell, 20 La.Ann. 215.

III. Is the defendant liable for the loss of the money? No demand was made until after failure of bank. A gratuitous bailee is not liable for nonfeasance. He is not liable until there is a special demand, unless he has done some wrongful act towards the property. Chitty on Cont. (11 Ed.) vol. 1, p. 665, note 4, and cases cited; McLean v. Rutherford, 8 Mo. 109; Wiser v. Chesley, 53 Mo. 547; Story on Bailments (5 Ed.) sect. 34.

IV. If the deposit was wrongful the plaintiff acquiesced in and ratified it. Story on Agency. (5 Ed.) sect. 255, et seq.; Curry v. Hall, 15 West. Va. 867.

HALL & ROGERS, for the respondent.

I. The first question is, whether it was the intention of the parties that Lipscomb should get the money for the steers and then pay Coleman his fifty-six dollars out of that identical money, to-wit, the twenty-three hundred dollars which the steers brought, or, was it their intention simply that Lipscomb should pay Coleman the fifty-six dollars out of his general funds. For in order to constitute a bailment the parties must intend that there shall be a return or delivery of the identical property or thing bailed. Schouler Bailments, pp. 5, 6 and 29; 2 Kent's Com. 558; Story Bailments, sect. 47. The facts, as found by the court, show that neither party, before the failure of the bank, expected that L. should pay the fifty-six dollars out of the identical money received for the steers. L. destroyed the identity of the money by depositing it to his own credit.

II. Lipscomb made himself personally liable in debt by depositing the money in bank to his own credit, and in his general account, for then the relation of debtor and creditor arose between him and the bank. Perry on Trusts, sect. 443 and cases cited; Kneck v. Savings Inst., 2 Mo.App. 563; State v. Powell, 67 Mo. 395; State v. Moore, 74 Mo. 413; State v. Rubey, 77 Mo. 610; Schouler Bailments 66; Dickinson v. Coates, 79 Mo. 250. The deposit was a loan to the bank. 2 Kent's Com. (12 Ed.) N.Y. 351.

III. Coleman knew L. had deposited to his own credit and L. offered to give check for it, but never did, but C. made no objection. The parties thus virtually agreed that Lipscomb should be the debtor of C.

OPINION

PHILIPS P. J.

This action was instituted in a justice's court, and tried on appeal in the circuit court, without the intervention of a jury. The court made the following finding as to the facts:

" On April 3, 1878, the defendant lived some ten or fifteen miles out of Kansas City, Jackson county, Mo., and started to Kansas City with a lot of cattle for sale. At New Santa Fe, near defendant's residence, the plaintiff, with the consent of the defendant, put a steer into the lot. The cattle were all driven to the stock yards at Kansas City, and there sold as the property of the defendant. The whole lot came to some $2,300. Plaintiff and defendant caught the weight of plaintiff's steer when being weighed, and it came to fifty-six dollars.

Plaintiff went home and left the defendant to get the money. The defendant got a check for the aggregate aforesaid on the Mastin bank from the purchaser. The defendant then went to the Mastin bank, but it being closed for the day, it being after banking hours, left the check with his brother to be deposited to the account of defendant the next day, which was done. Both plaintiff and defendant had an account with the bank. Plaintiff inquired at the bank, and found the money had not been placed to his account. Defendant met the plaintiff soon thereafter, and told the plaintiff how he had deposited the money, and said he would give the plaintiff a check for the fifty-six dollars. The inquiry at the bank by plaintiff, and the information given plaintiff by the defendant as to how it had been deposited, all occurred within ten days after the sale of the cattle. No check was actually made out to the plaintiff, nor did he demand one. Plaintiff did not demand the money until after the failure of the bank, and no objection was made by the plaintiff to what defendant had done with respect to it. The bank failed in August of that year. At this time the defendant had to his credit still in the bank some $300, the balance having been used by him. There was no design on the part of the defendant to keep the plaintiff out of his money, and he would have given the plaintiff a check at any time when asked so to do. On the foregoing finding of the facts the court declares the law to be that the relation of debtor and creditor existed, and the judgment must be for plaintiff."

From this judgment the defendant has appealed to this court. As the bill of exceptions does not contain any of the evidence introduced at the trial, the special finding of the court must, for the purpose of this appeal, be regarded as a special verdict. So the only question to be determined is as to the conclusion of law drawn therefrom.

The contention of the appellant (defendant below) is, that the transaction between the parties constituted a mere bailment, and the defendant must be regarded as a bailee without hire. It is, perhaps, unnecessary to discuss the distinction between a deposit and a mandate, and to determine to which of the two species of bailments this should be referred under defendant's theory; for, as stated by Story, in note 4, page 143, of his work on Bailments, ninth edition: " In almost every instance where a gratuitous bailment for the bailor's benefit has been presented, the court avoids making an issue between deposit and mandate, basing its legal conclusion upon principles common to both classes."

It cannot be said there was any bailment of the steer with the defendant, because the law is well settled that in order to constitute such bailment the parties must have intended that there should be a return or delivery of the identical thing bailed. 2 Kent. Com. 558; Trunick v. Smith, 63 Pa.St. 18-23; Story on Bailments 47, 93, 150, 283.

The very purpose of the parties in placing the steer in defendant's herd was to have him sold just as was done. When he was sold, and the amount of the purchase money ascertained, the plain...