Davis v. Knox County Sav. Bank

• Citation: 118 S.W.2d 52,234 Mo.App. 736
• Parties: E. L. DAVIS (PLAINTIFF) RESPONDENT, v. KNOX COUNTY SAVINGS BANK, BANK OF EDINA, R. W. HOLT, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI, AND IN CHARGE OF SAID BANKS IN LIQUIDATION (DEFENDANTS) APPELLANTS
• Decision Date: 20 June 1938
• Court: Court of Appeal of Missouri (US)

118 S.W.2d 52

234 Mo.App. 736

E. L. DAVIS (PLAINTIFF) RESPONDENT, v. KNOX COUNTY SAVINGS BANK, BANK OF EDINA, R. W. HOLT, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI, AND IN CHARGE OF SAID BANKS IN LIQUIDATION (DEFENDANTS) APPELLANTS

Court of Appeals of Missouri, St. Louis

June 20, 1938

Motion for Rehearing Overruled July 1, 1938.

Appeal from the Circuit Court of Knox County.--Hon. Walter A Higbee, Judge.

Judgment reversed.

S. H Ellison for respondent.

(1) Smith v. Stubb, 293 S.W. 496; Meredith v Martin, 9 S.W.2d 860. (2) Henkel v. Dunn, 97 Mo.App. 671; Harvey v. Francisco, 35 S.W.2d 366; Glassman v. Fainberg, 35 S.W.2d 950. (3) Groff v. Longsdon, 239 S.W. 1087. (4) Bowman v. Rahmoeller, 55 S.W.2d 453. (5) F. Reserve v. Millspaugh, 282 S.W. 706. (6) Groff v. Longsdon, 239 S.W. 1087.

Tom B. Brown and Paul K. Gibbons for appellants.

Arts. 1 to 8, Chap. 34, R. S. Mo., 1919; Farmers Bank of Deepwater v. Moberly et al., 78 S.W.2d, 906; Farmers and Merchants Bank v. Coleman et al., 9 S.W.2d 549; Sec. 5324, R. S. 1929.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This suit was begun in the Circuit Court of Knox County on the 9th day of April, 1937.

The petition, (caption and signatures omitted) is as follows:

"Plaintiff states that Knox County Savings Bank and the Bank of Edina are each corporations, organized under the laws of the State of Missouri, and prior to being taken over for liquidation by the Commissioner of Finance of Missouri, each of said banks was engaged in a general banking business in Edina, Knox County, Missouri.

"Plaintiff further says that Honorable O. H. Moberly at all of the times herein stated was, and he now is, the duly appointed, acting and qualified Commissioner of Finance of Missouri, and that since the first of November, 1933, Miles McNally has been, and he now is, the duly appointed, qualified and acting Special Deputy Commissioner of Finance of Missouri, in charge of the liquidation of said banks.

"Plaintiff further says that prior to November 1st, 1933, the affairs and business of each of said banks became involved and were placed in the hands of the Finance Department of Missouri, and have remained in its hands to this date.

"Plaintiff further says that in the process of liquidation said banks became the owners of, or entitled to a beneficial interest in the following lands in Knox County, Missouri, to-wit: (Description here set out.)

"Plaintiff further says that in the process of liquidation of said banks it was determined and decided by said Commissioner of Finance and by said Deputy Commissioner that it would be for the best interests of said banks and of persons interested in its affairs and assets to sell said lands, and in accordance with said decision and determination they employed the plaintiff to find a purchaser ready, willing and able to buy said lands for the price and sum of $ 3000, and it was further agreed and understood at the time that plaintiff was to receive as his compensation for finding a purchaser all sums over $ 3000 which said purchaser was ready, willing and able to pay therefor.

"Plaintiff further says that at all of the times herein stated he was engaged in the real estate business, and in the business of finding buyers ready, willing and able to purchase real estate of those owning and willing to sell same, and he was and is, located in Edina, Missouri.

"Plaintiff further says pursuant to said agreement to find a purchaser for said lands he did find a purchaser therefore on, or about, February 26th, 1935, who was then and there ready, willing and able to pay therefor the sum of $ 3300, in the person of Henry Early, of Knox County, Missouri, and so produced him to defendants, and said Early did then and there pay on said purchase price the sum of $ 1000 and took possession of said lands and kept and retained the same.

"Plaintiff further says that thereafter said lands were actually deeded by said Commissioner of Finance to said Early for the price and sum of $ 3451, which sum went into, and increased, the assets of said banks, and that said sum of $ 300 so increasing said assets, was and is the money and property of plaintiff.

"Plaintiff further says that he has made demand of said Commissioner for payment, who refuses to pay same.

"Wherefor plaintiff prays judgment against defendants in the sum of $ 300, with interest thereon from February 26, 1935, and for his costs."

After the court had overruled defendants' demurrer to the petition they filed an answer, which is as follows:

"Now come the defendants and for the answer to the plaintiff's petition say:

"(1) Admit that the defendant banks were, and are, Missouri banking corporations, located in Edina, Missouri, and that they became insolvent in November, 1930, and were, by their boards of directors, turned over to the Commissioner of Finance of the State of Missouri, for liquidation as by law provided.

"(2) Admit that O. H. Moberly is now the regularly appointed, qualified and acting Commissioner of Finance of the State of Missouri and that Miles McNally is his legally appointed, acting and qualified Deputy Commissioner of Finance, in charge of both of said banks.

"(3) Admit that at the time this service mentioned in the petition was supposed to have been rendered, that is in the early part of 1935, the defendant banks were the owners of the James Clark farm comprising approximately THREE HUNDRED ACRES, located in Sections one (1) and twelve (12), Township Sixty-one (61), Range Twelve (12), West, in Knox County, Missouri.

"(4) Deny each and every other allegation in said petition contained. Specifically denying that the plaintiff ever had a contract to sell said lands for any sum whatever, and in this connection allege the facts to be that the said plaintiff, in January, 1935, approached the aforesaid Miles McNally, Deputy Commissioner of Finance, and offered to purchase the said farm in his own name and behalf for the sum of $ 3000; that after due consideration said offer was by the Deputy Commissioner, accepted, subject to the approval of the Circuit Court of Knox County, or of the Judge thereof in vacation, as by law provided; that pursuant thereto a petition was duly prepared and presented to Hon Emert C. Hilbert, Judge of the Circuit Court, at his chambers in Canton, Missouri, and the said petition, reporting the offer of the plaintiff, to buy said lands at the price and sum of $ 3000, and asking authorization, in the name of the Commissioner of Finance of the State of Missouri, to make, execute and deliver a deed, to said lands, to the aforesaid E. L. Davis, upon the payment by him of the sum specified, was, by the said Judge of the Circuit Court of Knox County, Missouri, rejected and disapproved.

"(5) Defendants further answering, specifically deny that the aforesaid Miles McNally had any legal right to obligate and bind the Commissioner of Finance of the State of Missouri, by any contract or purported contract, either written or oral, involving the creation of a debt or debts for said Bank of Edina, or Knox County Savings Bank, under his certificate of appointment as Special Deputy Commissioner of Finance in charge of said banks.

"Defendants having fully answered beg leave to be discharged from any obligation under said petition." The reply is as follows:

"Replying to defendants' answer, plaintiff denies he approached said McNally at any time, offering to buy the lands in question on his own account for $ 3000, or any other sum, and plaintiff avers that defendants, and said McNally, at all times knew that Henry J. Early was the purchaser thereof, and in March, 1935, the defendants put said Early into the actual possession of said lands under the agreement and contract of sale stated in the petition, where he, and those claiming under him, remain to this date, and since said date in March said Early has collected the rents and profits from said land, and has exercised full control over said land.

"Plaintiff denies that he had any agreement with the defendants, or with said McNally, regarding the sale of said lands which was conditioned upon obtaining the approval of the Circuit Court, or the Judge of said court, and plaintiff further says that if any sale of said lands was not approved by the court, or Judge, such action was at the special instance and request of the defendants, without judicial inquiry, and for no other reason.

"Further replying, plaintiff says that it is admitted in paragraph four of defendants' answer that said McNally did have authority to sell said lands for the sum of $ 3000 net, it is wholly immaterial whether he did, or not, for the reason that at all times stated in the petition, and before said dates, said Moberly had full knowledge of all of the facts, and he held said McNally out to plaintiff in said transaction, and in similar transactions, as fully authorized to act in the premises, and he accepted said Early as purchaser, and he accepted the fruits of plaintiff's labors, and he accepted said $ 3000, together with $ 300, being in fact the money belonging to plaintiff under the agreement, and the additional sum of $ 151 represented the amount of taxes and some additional items which had accrued after Early took possession of said lands in March, and which had been paid by defendants, and did not, in fact, represent any additional purchase price, and for all of the above and foregoing reasons the defendants are estopped to question said sale, or the authority of McNally to make the contracts before mentioned.

"Plaintiff further says that authority in said McNally to engage plaintiff to find a purchaser for said land is a matter incident to his right to sell the lands, and...