Daly v. People's Bank of De Soto

• Decision Date: 06 December 1927
• Docket Number: No. 19578.,19578.
• Parties: DALY v. PEOPLE'S BANK OF DE SOTO.
• Court: Missouri Court of Appeals

299 S.W. 838

DALY v. PEOPLE'S BANK OF DE SOTO.

No. 19578.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Suit by Kerfoot W. Daly, trustee for the Pittsburgh & Potosi Lead Company, against the People's Bank of De Soto. From a judgment for defendant, plaintiff appeals. Affirmed.

Nagel & Kirby, of St. Louis, for appellant.

T. E. Francis, of St. Louis, Frank Dietrich, of Hillsboro, and John F. Evans, of St. Louis, for respondent.

NIPPER, J.

This suit was brought by plaintiff to establish a preferred claim against the People's Bank of De Soto, and to have said claim declared a trust fund. There was a verdict and judgment for defendant People's Bank of De Soto, hereafter referred to as the Bank, and from this judgment plaintiff has appealed.

The Bank is in the hands of the state bank commissioner for liquidation.

On or about November 5, 1920, the plaintiff entered into an agreement with one E. F. Cordia, doing business as the E. F. Cordia Land & Lumber Company, whereby plaintiff conveyed to Cordia the timber on certain land in Washington county. On that date the agreement, or timber contract, was forwarded to the Bank with some other papers, to be delivered to Cordia, upon Cordia's paying the bank the sum of $7,000. On the date above named, plaintiff wrote to the Bank inclosing the agreement, in duplicate, between the plaintiff and Cordia. The Bank was notified in this letter to deliver the original contract to Cordia when he paid to said Bank the sum of $7,000, and the Bank was then asked to return the duplicate to plaintiff with its draft for the above-named amount. This letter directed the Bank not to deliver any of the papers to Cordia except upon receipt of the proper funds named therein. The bank was notified that in case the matter was not closed within a week, all papers should be returned to plaintiff.

The Bank, through its cashier, acknowledged receipt of the papers and notified plaintiff that a check would be forwarded to him shortly. There was some correspondence followed, between plaintiff and the cashier of the Bank; but plaintiff never received the money. The dealings between plaintiff and the Bank were had through the Bank's cashier, who died shortly after the transaction between plaintiff and defendant, and before the Bank went into liquidation.

E. F. Cordia testified, over the objections and exceptions of defendant, that the cashier of the Bank gave him a timber contract or conveyance, transmitted to the Bank by plaintiff and that on the same day he received this he delivered to the cashier of the Bank his own check for $3,500 and a check of G. H. Higginbotham for $3,500. Cordia's cheek was drawn on the defendant Bank, and the Higginbotham check was drawn on the Washington County Bank, and made payable to the order of the E. F. Cordia Land & Lumber Company, and bore on its face...