Dennis v. Grand River Drainage Dist.

• Decision Date: 02 May 1938
• Docket Number: No. 18993.,18993.
• Parties: DENNIS v. GRAND RIVER DRAINAGE DIST. OF LIVINGSTON AND LINN COUNTIES et al.
• Court: Missouri Court of Appeals

118 S.W.2d 113

DENNIS v. GRAND RIVER DRAINAGE DIST. OF LIVINGSTON AND LINN COUNTIES et al.

No. 18993.

Kansas City Court of Appeals. Missouri.

May 2, 1938.

Rehearing Denied June 13, 1938.

Appeal from Circuit Court, Grundy County; A. G. Knight, Judge.

"Not to be published in State Reports."

Action by F. L. Dennis against the Grand River Drainage District of Livingston and Linn Counties, Missouri, and others to recover amount of check. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Robert C. Frith, of Chillicothe, for appellants.

F. L. Arthaud, of Chillicothe, for respondent.

CAMPBELL, Commissioner.

F. L. Arthaud and the defendant, Drainage District, signed a contract dated August 24, 1929, by the terms of which Arthaud agreed to dredge cut #29 of the drainage district, for which the district promised to pay him the sum of $1174. The contract provided Arthaud would give bond conditioned that he would perform the contract on his part. When it developed that he was unable to furnish bond the district offered to accept cash in the amount of $587 in lieu of the bond. Thereupon Arthaud obtained a check for $587 certified by the Farmers and Merchants Bank of Chillicothe, Missouri, payable to the secretary-treasurer of the defendant and the check was delivered to and accepted by the district. Arthaud fully performed the contract on his part and the work was accepted by the defendant. On March 8, 1930, Arthaud assigned his right under the contract to his daughter, the plaintiff herein. As the work progressed payments therefor were made by defendant from time to time to Arthaud, plaintiff and their assignees. These payments and the final payment amounted to the sum of $1174. One of the payments in the sum of $300 will be hereinafter discussed.

The Farmers and Merchants Bank closed on October 12, 1931, and its property passed into the hands of the commissioner of finance of Missouri. The defendant did not present the check to the bank but retained it until the bank closed. After the bank closed the defendant tendered the check to Arthaud and to the plaintiff. The tenders were refused. Finally the district required Arthaud to indorse a credit of $300 on the check. The district then indorsed and delivered the check, which was then for the sum of $287, to Arthaud who accepted it for one of his creditors.

In this action plaintiff seeks to recover $300 with interest thereon on the theory that the check as between the parties was cash in the hands of the defendant and that upon the completion and acceptance of the work the defendant was under duty to pay to her the amount of the check, and as it has paid only the sum of $287 the balance of $300 was due to her.

The defendant contends it was understood the check would be held by it until the contract was fulfilled and then returned to Arthaud.

The cause was tried to the court without the aid of a jury. The judgment was for the plaintiff in the sum demanded. The defendant has appealed.

There was no findings of fact nor declarations of law requested or given, and we must therefore affirm the judgment if we can do so on any legal ground.

The evidence for the plaintiff tends to show that, when Arthaud failed to furnish bond, as required by the provisions of the contract, the district offered to accept cash as and for a bond; that Arthaud obtained the certified check and delivered it to the district; that there was no understanding the district would hold the check. On this point the evidence of one of defendant's officers lends color to plaintiff's contention. He testified:

"Q. Do you say to the court the check was to be given to me (Arthaud)? A. It was put up as your bond, wasn't it to be returned to you?

"Q. I don't ask you that, if you please; was there any agreement the check was to be returned to me? A. No absolute agreement only put up in the shape of a bond and when the job was done the bond was to be returned." (Italics ours.)

Obviously this officer construed the mere act of Arthaud in placing the check in the custody of the district constituted an agreement which allowed the district to hold the check until the work was completed and then return it to Arthaud. The act of delivering the check without more did not warrant defendant's officer in arriving at the conclusion the district could hold the check as it did. On the contrary, it was the plain duty of the district, absent an agreement to the contrary, to present the check for payment within a reasonable time after it was received. Section 2814, R.S. 1929, Mo.St.Ann. § 2814, p. 722.

It is also plain the failure of the defendant to present the check for payment resulted in a loss of $300, a loss which must be borne by either the plaintiff or defendant.

The evidence was sufficient to show the loss was caused by the neglect of the defendant. In such circumstances the loss must fall on it.

The defendant contends the recital in its minutes to the effect the check would be retained until the contract was performed by Arthaud, and then returned to him, is conclusive on the plaintiff. According to the evidence for plaintiff the minute was made without authority of Arthaud. The minute and the oral testimony for the plaintiff created a conflict in the evidence. The conflict was for the trial judge and by his finding we are bound.

The indorsement of a credit of $300 on the check at the time it was delivered to Arthaud for one of his creditors was not supported by any consideration and, therefore, did not affect the rights of either party to this law suit.

The defendant's answer pleaded res judicata based on the judgment in a prior action...