Dixon v. Jackson Exch. Bank.

• Decision Date: 14 June 1910
• Citation: 149 Mo. App. 585,129 S.W. 481
• Parties: DIXON v. JACKSON EXCH. BANK.
• Court: Missouri Court of Appeals

129 S.W. 481

149 Mo. App. 585

DIXON v. JACKSON EXCH. BANK.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. REFERENCE (§ 8) — COMPULSORY REFERENCE.

An action involving an examination of a long account between the parties is an action for compulsory reference.

2. PRINCIPAL AND AGENT (§ 106) — AUTHORITY OF AGENT.

Where the president of a bank was the agent of a third person to collect notes due him, and to take steps necessary to that end, including the payment of court costs, and to pay the third person's dues to a fraternal order, the president was not a general agent, and could not treat as his own the money collected and deposited in the bank in the third person's name, and could not make such representations to the cashier of the bank as to induce him to pay checks out of the third person's account as the president saw fit.

3. BANKS AND BANKING (§ 119) — RELATION WITH DEPOSITOR.

Where the president of a bank, employed as the agent of a third person to collect notes due him, collected notes and deposited the proceeds in the bank to the third person's credit, and notified the third person thereof, and the third person replied that he would let it remain in the bank until it could be lent out, the relation

of debtor and creditor existed between the bank and the third person.

4. BANKS AND BANKING (§ 121) — LIABILITY OF BANK — ESTOPPEL.

Plaintiff employed the president of a bank to collect notes due him. The president made collections, and deposited the proceeds in the bank to the credit of plaintiff. Subsequently plaintiff visited the bank during the time the president was using the money for his own purposes, but he did not ask the bank for a statement of account. Plaintiff had no pass book, and had never received at any time a stated account in which he had acquiesced. Held not to estop him from suing the bank for the amount deposited to his credit.

5. BANKS AND BANKING (§ 138) — LIABILITY OF BANK — PAYMENT OF CHECKS.

Where an agent employed to collect notes due his principal collected notes, and deposited the proceeds in a bank of which he was president to the credit of the principal, the bank was liable for the amount deposited, though the cashier paid checks drawn against the account in the name of a corporation in which the president was interested, or in the name of the president himself, without reason to believe that the payments were for the benefit of the principal.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by George W. Dixon against the Jackson Exchange Bank. From a judgment for plaintiff, defendant appeals. Affirmed.

Jno. A. Snider and R. B. Oliver, for appellant. T. D. Hines and B. C. Hardesty, for respondent.

GOODE, J.

Action for $823.37, alleged to be money which was received by defendant to the use of plaintiff. The cause was referred to a referee by consent, but it was one for reference without consent, because it involved the examination of a long account between the parties. The referee's report was in favor of a judgment for plaintiff in the sum of $914.78, the amount sued for and interest, and judgment having been entered by the circuit court for said sum, after the argument of exceptions to the referee's report, this appeal was prosecuted from the judgment. Plaintiff was reared in Cape Girardeau county, of which Jackson is the county seat; but more than 20 years ago he removed to Oklahoma, where he has resided ever since. When he left Missouri, he intrusted the collection of obligations due him to Eli Abernathy, who acted as agent for plaintiff until December, 1900, when, at Abernathy's request, he was relieved of the agency, and Henry R. English was appointed in his stead. Abernathy turned over a few notes to English on which was collected in the course of time, $1,165.40, and deposited by English to the credit of plaintiff in defendant bank, of which English was president and bookkeeper when he was appointed agent for plaintiff, and continued to be until July, 1906. English was authorized by plaintiff to pay out of the money he collected the dues of plaintiff to the Ancient Order of United Workmen, as they matured from month to month, and he also paid some court costs that accrued in collecting the notes. English opened an account in defendant bank in the name of plaintiff in December, 1900, when he first became agent, and checked on it every month to December, 1903, to pay plaintiff's said dues; and during those years checked twice for court costs, one item of which was a fee of $1 for recording a transcript, and the other item was $7 for court costs. English collected no considerable amount until May, 1901, when $600 was paid, and thereupon he wrote plaintiff he had placed the money to plaintiff's credit in the bank, and the latter answered: "I will leave the money with your bank until I can place it; or if you can loan it for me, let it out." Meanwhile and until December, 1903, English drew no money...