Dickey v. Adler
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 593,143 Mo.App. 326 |
| Parties | WM. N. DICKEY, Respondent, v. ISAAC ADLER et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
I. J Ringolsky for appellant.
(1) The certificate of deposit introduced in evidence is a negotiable instrument and the rights and liabilities of the parties to this suit should be determined by the statutes of Missouri and the law of merchants. Laws of 1905, p. 243, sec. 1; 7 Cyclopedia of Law, p. 535, 811, note 55 and p. 853; Adell & Frink v. Gray & Co., 15 Mo. 357. (2) Even if the certificate of deposit is not a negotiable instrument as such, yet as it is transferable by indorsement and is commercial paper and was indorsed by plaintiff, the rights and liabilities of the parties are to be determined as if it is a negotiable instrument and not as if it is an ordinary corporeal chattel. Bank v. Bank, 71 Mo. 183. (3) Before a purchaser for value of a negotiable instrument before maturity can be charged with notice of an infirmity in the holder's title to same, under the statutes of Missouri and the law as firmly established by the appellate courts of this State, it is incumbent on the plaintiff to show that defendants, Wilkinson and Barto, had actual knowledge of the infirmity or defect in Adler's title to the certificate of deposit or that they acted in bad faith. Laws 1905, p. 250, sec. 56; Bank v. Hammond, 104 Mo.App. 403; Jennings v. Todd, 118 Mo. 296; Hamilton v. Marks, 63 Mo. 167. (4) Gross negligence mere suspicion, or knowledge of facts which would excite the suspicion of a prudent man, on the part of Wilkinson and Barto, would not make them liable to plaintiff; actual notice of the facts which impeach the title of Adler to the certificate of deposit must be shown before plaintiff was entitled to recover a verdict against either of the defendants, Wilkinson or Barto. Hamilton v. Marks, 63 Mo. 167; Jennings v. Todd, 118 Mo. 296; Laws of 1905, p. 250, sec. 56; Bank v. Hammond, 104 Mo.App 403; Johnson v. McMurray, 72 Mo. 278. (5) It is true that, as a general rule at common law, no one can give a better title to personal property than he himself has, but securities and commercial paper, which, when endorsed, pass from hand to hand, are exempt from this principle of law. Savings Inst. v. Hinsman, 1 Mo.App. 336; Courtail v. Loewenstein, 78 Mo.App. 485; Hamilton v. Marks, 63 Mo. 167. (6) The instructions given for plaintiff and the instructions given by the court of its own motion, declared the rights of the parties, as if the certificate of deposit was an ordinary corporeal chattel, like household furniture, and ignored entirely the principles of law applicable to commercial paper. The rule of caveat emptor does not apply to commercial paper. Spooner v. Holmes, 102 Mass. 503; see authorities cited under point 4. Although the proof shows Wilkinson's cashing the certificate was not in the line of the partnership business, yet the court made Barto liable for the wrong-doings of Wilkinson, if he committed a tort and a conversion, just because he was a partner in business with Wilkinson. Barto was not liable for the tort of Wilkinson, even if it be conceded Wilkinson did commit a tort and was guilty of conversion. Shepard v. Hynes, 104 F. 449.
George W. Day and H. L. Green for respondent.
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, Missouri, on his way to visit his son at Fayette, Missouri, but without transportation. He had, however, the following certificate of deposit from a bank in Kansas payable to his order:
"ST. JOHN, KANS., Apr. 9, 1908.
The plaintiff went into the place of business of defendants Wilkinson and Barto nearby and asked defendant Adler, their clerk, to loan him ten dollars, 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, Missouri; that he was without money, and that he would put up the certificate of deposit if he would loan him ten dollars, 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 four hundred dollars. Wilkinson & Co. paid nothing to Adler at that time, but five days thereafter they drew a check on the bank in his favor for four hundred dollars upon which he drew the money.
On the 30th day of April, the day on which the check was given to Adler for four hundred dollars, 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 nine 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." Whereupon Wilkinson said to a policeman who had been called in, "Take that man out of here and put him in the lock up, he is bothering me."
The defendant's evidence went to show that on the day they gave Adler the check for four hundred dollars, Wilkinson told Adler to purchase a draft in the sum of three hundred and ninety dollars, and send it to plaintiff at St. John, Kansas but that instead of doing so Adler drew the money on the check, took out the ten dollars he had loaned plaintiff and enclosed three hundred and ninety dollars in money in an envelope addressed to plaintiff at St. John, Missouri, and forwarded it by registered mail to that place. The envelope was returned, it not having been...
To continue reading
Request your trial