Commerce Trust & Savings Bank v. Schuler

• Decision Date: 06 May 1930
• Docket Number: No. 21044.,No. 21043.,21043.,21044.
• Citation: 27 S.W.2d 492
• Court: Missouri Court of Appeals
• Parties: COMMERCE TRUST & SAVINGS BANK OF CHICAGO, III., v. SCHULER, Sheriff, et al.

27 S.W.2d 492

COMMERCE TRUST & SAVINGS BANK OF CHICAGO, III., v. SCHULER, Sheriff, et al.

No. 21043.

No. 21044.

St. Louis Court of Appeals. Missouri.

May 6, 1930.

Appeals from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Suit by the Commerce Trust & Savings Bank of Chicago, Ill., against Anton Schuler, Sheriff of the City of St. Louis, and another. Judgment for defendants, and plaintiff appeals, and from an order overruling defendants' motion in arrest of judgment, they appeal.

Judgment affirmed, and order reversed and remanded with instructions.

Abbott, Fauntleroy, Cullen & Edwards, Edwin C. Luedde, and Oliver T. Remmers, all of St. Louis, for plaintiff.

Sheridan, Sheridan & Robertson and J. C. Robertson, all of St. Louis, for defendants.

HAID, P. J.

Two appeals are involved here, one by the Commerce Trust & Savings Bank of Chicago, plaintiff, from a verdict and judgment in favor of the defendants, and the other an appeal by the defendants from an order overruling their motions in arrest of judgment because of the failure of the jury in its verdict to assess the value of the property involved.

Plaintiff, the Commerce Trust & Savings Bank of Chicago, filed a petition in replevin in the usual form supported by affidavit, to secure possession of two carloads of onions which had been attached by the sheriff in an attachment suit filed in the circuit court brought by the Meyer-Vasquez Produce Company, a corporation, against E. Kahn & Co., a corporation. The plaintiff bank filed bond in replevin and, by delivery order of the circuit court, secured possession of the two carloads of onions. The amended answers of the two defendants pleaded a general denial and then affirmatively that the replevined property had been attached by the sheriff in the suit filed by the Meyer-Vasquez Produce Company against E. Kahn & Co., and that said property, at the time of the institution of the suit in replevin, was the property of E. Kahn & Co., the defendant in the attachment suit, and was properly attached by the defendant sheriff and held by him in said attachment suit to satisfy the demand of Meyer-Vasquez Produce Company against said E. Kahn & Co. The sheriff demanded a return of the property to him to be held by him as sheriff in the attachment suit, and the Meyer-Vasquez Produce Company likewise demanded the return of the property to the sheriff.

The case was tried before a jury and resulted in a verdict in favor of the defendants Anton Schuler, sheriff, and the Meyer-Vasquez Produce Company. It was admitted by all parties that the value of the onions was $1,970.96.

The facts shown at the trial were as follows: E. Kahn & Co. was a depositor in plaintiff bank and had been such for about two years before the transaction in question.

That on June 20, 1927, E. Kahn & Co. deposited with plaintiff, among other items, two sight drafts for $987.25 each upon Cicardi Bros. Fruit & Produce Company, St. Louis, reciting. "On arrival on order attached pay to the order of Commerce Trust & Savings Bank." Each of the drafts was accompanied with a delivery order directed to agent of the railroad reciting, "Upon surrender of this order and payment of draft and all other charges, deliver to Cicardi Bros. Fruit & Produce Co., St. Louis, Missouri, contents onions," and signed by E. Kahn & Co.; also accompanied by invoices of same date showing sale to Cicardi Bros. Fruit & Produce Company giving car number, number of packages, weights, etc. The amounts of these two drafts appeared upon a deposit slip of plaintiff which recited: "In receiving items for deposit or collection, this bank acts only as depositor's collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. This bank * * * may charge back any items at any time before final payment, whether returned or not, also any item drawn on this bank not good at close of business on day deposited."

The assistant cashier of the plaintiff testified that the two drafts appearing upon the deposit slip were initialed by him, thus authorizing the teller of the bank to accept the same to the depositor's credit and which permitted the depositor to draw against such deposit; that these drafts were forwarded with a transit collection letter to the Liberty Central Trust Company of St. Louis under date of June 20, 1927, and he identified ledger sheets of plaintiff showing the account of E. Kahn & Co. credited with the total amount of the deposit slip. Witness further testified that this account was checked against the following day and was overdrawn in the sum of $640.07; that the drafts were not honored by Cicardi Bros.; thereupon plaintiff requested the return of the drafts. On cross-examination he testified that plaintiff did not deal in vegetables, onions, and produce unless they had to; that in several instances they had dealt in them, that is, disposed of car lots where plaintiff was creditor of a defaulting corporation, where plaintiff was the main creditor and certain cars were in their possession and they had to dispose of them in order to realize on them; that when some customer became insolvent with a lot of cars on hand, the bank would dispose of the produce, but aside from transactions like that the bank did not buy and sell onions or other produce; that the plaintiff bank does not make a habit of it; that is not its business; that the drafts were submitted to him before the teller credited the account of E. Kahn & Co., and after he approved them the drafts were handled by the bank in the daily routine, just like a check would be when deposited; that the teller was authorized to credit checks and cash on a depositor's account, but when the depositor had a draft in addition to checks he was required to get witness' approval thereof, and then it would be credited by the teller just as he would credit a check or cash; they were credited to the depositor's account for a consideration; that while the deposit slip refers to receiving items for deposit, that has reference to checks; that it was understood with the depositor verbally; that plaintiff received information that the cars had been attached, but did not receive information that Cicardi Bros. had refused to take the cars and knew nothing about that; that the invoices which he had identified were just a carbon copy of the draft, with the exception of the items appearing below the double lines across the center; that it probably happened that the plaintiff got the invoices because it was all typewritten on the draft, but he could not say; that on June 27, E. Kahn & Co. paid plaintiff the amount of these drafts, and that plaintiff had nothing to do with these two cars after that. On redirect examination witness...