Dickey v. Adler

• Decision Date: 04 April 1910
• Citation: 127 S.W. 593,143 Mo. App. 326
• Parties: DICKEY v. ADLER et al.
• Court: Missouri Court of Appeals

127 S.W. 593

143 Mo. App. 326

DICKEY v. ADLER et al.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. BILLS AND NOTES (§ 151) — CERTIFICATE OF DEPOSIT — NEGOTIABILITY — "NEGOTIABLE INSTRUMENT."

Under Laws 1905, p. 243 (Ann. St. 1906, §§ 463-1 to 463-197), providing that an instrument, to be negotiable, must be in writing and signed by the maker or drawer, contain an unconditional promise or order to pay a sum certain in money, be payable on demand or at a fixed future time, be payable to order or to bearer, and where the instrument is addressed to a drawee he must be indicated with reasonable certainty, a certificate of deposit issued by a bank, payable to the order of the payee, is a "negotiable instrument."

2. TROVER AND CONVERSION (§ 35) — BURDEN OF PROOF.

In an action for conversion of a certificate of deposit, it was incumbent on plaintiff to show that defendants, who received the certificate from their codefendant, had actual notice of the infirmity of the latter's title.

3. TROVER AND CONVERSION (§ 40) — NOTICE OF PLAINTIFF'S TITLE — SUFFICIENCY OF EVIDENCE.

In an action for conversion of a certificate of deposit, evidence held to show that defendants did not purchase the certificate in good faith and for a valuable consideration, but had notice of plaintiff's title.

4. TROVER AND CONVERSION (§ 40) — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action for conversion of a certificate of deposit, evidence held to support a verdict for plaintiff.

5. PARTNERSHIP (§ 155) — LIABILITIES AS TO THIRD PERSONS — COPARTNERS — ESTOPPEL.

Defendant, who as a partner of his codefendant was a recipient of the result of the latter's fraud in converting a certificate of deposit belonging to plaintiff, was estopped from denying liability, though he did not personally participate in the transaction.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by William N. Dickey against Isaac Adler and others. From the judgment, certain defendants appeal. Affirmed.

I. J. Ringolsky, for appellants. George W. Day and H. L. Green, for respondent.

BROADDUS, P. J.

This is a suit for conversion. The facts are as follows:

On the 22d day of April, 1908, plaintiff was at the Union Depot in Kansas City, Mo., on his way to visit his son at Fayette, Mo., but without transportation. He had, however, the following certificate of deposit from a bank in Kansas, payable to his order: "St. John, Kan., Apr. 9, 1908. No. 9,414. This certifies that W. N. Dickey has deposited $400.00 in the First National Bank, four hundred & no-100 dollars, payable to the order of self, on the return of this certificate properly indorsed. R. N. Thompson, Cashier. Certificate of deposit. Not subject to check." The plaintiff went into the place of business of defendants Wilkinson and Barto near by and asked defendant Adler, their clerk, to loan him $10, and offered to put up the said certificate of deposit as security for the loan. Plaintiff's evidence tends to show that he told Adler that he was going on a visit to his son at Fayette, Mo., that he was without money, and that he would put up the certificate of deposit if he would loan him $10, which he would on his return in a few days redeem, or that he might write for it. Adler told him he would make him the loan as an accommodation, and that he would hold the certificate until plaintiff returned or redeemed it. At Adler's request plaintiff wrote his name on the back of the certificate. At this time defendant Wilkinson, who was present, said: "That check ain't worth a damn to me unless it's signed." Plaintiff left the place, but shortly returned and said to Adler: "You neither give me your name, nor number, nor nothing else." Whereupon Adler wrote on a slip of paper the following: "I. Aldin, 1042 Grand Avenue." Adler's statement is somewhat different, viz., that "he [plaintiff] told me that — He says, `Now, I will expect to be here in two or three days and redeem that,' and he says, `If I do not appear personally, I might give an order to some one, or write personally.'" In about three days thereafter Adler went to Wilkinson and made some explanation of the matter. The words "Pay to Isack Adler or order" were written above the name of plaintiff on the back of the certificate. Wilkinson then indorsed the name of Wilkinson & Co. below, and the certificate was taken to the bank by Adler and deposited to the credit of Wilkinson & Co., and entry made to that effect in their bank book, by the cashier of the bank, for the sum of $400. Wilkinson & Co. paid nothing to Adler at that time, but five days thereafter they drew a check on the bank in his favor for $400, upon which he drew the money.

On the 30th day of April, the day on which the check was given to Adler for $400, plaintiff returned and offered to redeem his certificate. He said to Wilkinson, "I borrowed the money to pay for that paper." Wilkinson said to him, "We have sent it off, but I will pay it to-morrow morning at 9 o'clock." Adler was then present. Plaintiff went back next morning, when Wilkinson spoke up and said, "We have sent it off, I tell you." Plaintiff then said, "It is a hell of a note you sent it off."...