Commercial Bank v. Central Nat. Bank

• Decision Date: 29 April 1918
• Docket Number: No. 12840.,12840.
• Parties: COMMERCIAL BANK OF BOONVILLE v. CENTRAL NAT. BANK OF BOONVILLE.
• Court: Missouri Court of Appeals

203 S.W. 662

COMMERCIAL BANK OF BOONVILLE v. CENTRAL NAT. BANK OF BOONVILLE.

No. 12840.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

1. BANKRUPTCY — PRESENTATION OF CLAIM IN BANKRUPTCY PROCEEDINGS—EFFECT.

Where a bank lends money upon a note signed by an automobile concern by a partner thereof, thinking money was for and note payable by a bank of which the partner signing note and receiving money was assistant cashier, former bank, by treating note as an obligation of the automobile concern and proving up claim therefor in bankruptcy proceedings, is barred from subsequently suing bank for the money lent on ground that money was given to assistant cashier as agent of the bank.

2. BANKRUPTCY — PRESENTATION OF CLAIM IN BANKRUPTCY PROCEEDINGS—EFFECT.

In such case bank lending money cannot reserve right to proceed against the other bank by a statement in its petition in bankruptcy against the automobile concern that it did not intend to release the bank from liability.

Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge.

"Not to be officially published."

Action by the Commercial Bank of Boonville, Mo., against the Central National Bank of Boonville, Mo. Judgment for plaintiff, and defendant appeals. Reversed.

W. G. & G. T. Pendleton and Roy D. Williams, all of Boonville, for appellant. John Cosgrove, of Boonville, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendant has appealed. Defendant insists that its demurrer to the evidence should have been sustained.

The evidence shows that on August 3, 1916, and 20 years prior thereto, a custom existed among the banks doing business is Boonville, Mo., that, when one bank was short of currency it would go to another bank and secure a temporary loan of money; that on said day A. H. Stephens, who was assistant cashier of the defendant bank, went to the plaintiff and asked for a temporary loan of $1,500, and that he agreed to return the same on the following day. A. H. Stephens was also a member of the automobile firm of Stephens & Son. It is not clear from the record whether the automobile concern had Previous to the time in question borrowed money of plaintiff. When the money was given to Mr. Stephens, the following memorandum was written upon a blank form of note in use by the plaintiff bank:

                "$1,500.       Boonville, Mo., ........, 189
                 ...... demand ........ after date 
                promise to pay to the order of the Commercial
                Bank of Boonville, Mo., fifteen hundred
                100 dollars, for value received, negotiable and
                payable without defalcation or discount at the
                Commercial Bank of Boonville, Mo., with interest
                at the rate of 8 per cent. per annum
                from  and interest to be compounded annually
                                     A. H. Stephens Son
                                    "A. H. Stephens."
                

The only words and figures contained in this memorandum that were inserted by Mr. Stephens were the figures $1,500 at the top left-hand corner of the memorandum and the words "demand", "fifteen hundred" and the signatures, "A. H. Stephens Son," "A. H. Stephens."

It will be seen from an examination of this memorandum that in the signatures the name of defendant bank does not appear. However, the president of plaintiff hank stated that Mr. Stephens, when he secured the money, stated that "he needed the $1,500 in currency at the bank and would return it next day," and that "the bank needed it." There is some slight evidence that the defendant bank received the $1,500, and, as the jury found for the plaintiff, we may assume that the defendant actually received the $1,500. The president of plaintiff testified that he did not look at the memorandum given by Stephens; that he understood he was loaning the money to the...