Cummings v. Winn

• Decision Date: 30 April 1886
• Citation: 89 Mo. 51
• Court: Missouri Supreme Court
• Parties: CUMMINGS v. WINN.¹

89 Mo. 51

CUMMINGS

v.WINN.¹

Supreme Court of Missouri.

April Term, 1886.

Appeal from circuit court, Knox county; BEN E. TURNER, Judge.

Berry & Thompson, for appellant. Williams & Jones and Sears & Guthrie, for respondent.

[COPYRIGHT MATERIAL OMITTED]

HENRY, C. J.

The plaintiff alleged in his petition that in 1873 the Macon Savings Bank, at Macon, Mo., was incorporated as a banking institution, and conducted a banking business until February, 1882; that defendant was, from the date of its incorporation to February, 1882, a director and managing officer of said bank; that said bank was insolvent from 1874 continuously to the date of its suspension,--15th of February, 1882; that defendant knew that said bank was all that time insolvent, and that its assets were being mismanaged, wasted, and made way with; that said bank at no time had money, or other available assets, to carry on its business, except the money of its depositors; that the directors, officers, and managers, from time to time, while said bank did business, as aforesaid, took the deposits, money, and effects of said bank and loaned it, and appropriated it to themselves, and to each other, to an amount of at least $150,000, without securing the same, being themselves insolvent, so that said sum and more was lost to the bank, all of which defendant knowingly and negligently permitted to be done, without objection, and that at the time of its suspension it was indebted in the sum of about $275,000, and did not then have assets to an amount exceeding $50,000, and that all of said acts of the officers of said bank were at all times known to the defendant, and that he fraudulently and knowingly helped to carry out their fraudulent schemes; that, knowing the insolvent condition of the bank, defendant, intending to deceive plaintiff and others depositing money in said bank, in the month of September, 1881, caused to be made out what purported to be a financial statement of the condition of the bank, which, stating the items, showed an aggregate of assets of $341,403.61, and of liabilities $232,820.79; that, included in said statement of the bank's resources, the larger proportion consisted of insolvent and worthless notes, made by six parties named, who were officers, agents, and managers of said bank, and other worthless notes and railroad bonds, aggregating $191,000, or more; that defendant, knowing the above facts, signed and certified said false statement to be true and correct, and had it published in the newspapers then circulating in Macon county. After divers other allegations of fraudulent acts on the part of the officers of said bank, done with the knowledge and connivance of defendant, plaintiff proceeds to allege that at the date of that publication he was a stranger to defendant and the other officers of the bank, and had no knowledge of its condition, but in September, 1881, desiring to deposit some money for safe-keeping, saw and read the statement aforesaid, and believing it to be true, and relying thereon, and believing that defendant was a prudent and cautious business man, and had truly certified the available resources of said bank, and believing from said statement that it was solvent, he deposited therein about $900, which he lost, and asks judgment therefor, with interest, against defendant. The court sustained a demurrer to the petition, and rendered a judgment for defendant, from which plaintiff has appealed.

Section 918, Rev. St. 1879, provides that “no president, director, manager, cashier, or other officer or agent, of any bank or banking institution...