Dunbar v. Iowa State Bank

• Decision Date: 09 May 1927
• Docket Number: No. 15946.,15946.
• Citation: 295 S.W. 835
• Parties: DUNBAR et al. v. IOWA STATE BANK.
• Court: Missouri Court of Appeals

295 S.W. 835

DUNBAR et al. v. IOWA STATE BANK.

No. 15946.

Kansas City Court of Appeals, Missouri.

May 9, 1927.

Rehearing Denied June 6, 1927.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

Action by Phillip E. Dunbar and another, copartners doing business under the firm name of Dunbar & La Tour, against the Iowa State Bank. Judgment for plaintiffs, and the defendant appeals. Reversed and rendered.

Landis & Duncan, of St. Joseph, for appellant.

B. L. Kaufman and Culver, Phillip & Voorhees, all of St. Joseph, for respondents.

WILLIAMS, C.

This is a suit upon two cashier's checks. The suit was brought in the circuit court of Buchanan county. Plaintiff had judgment, and by appropriate action the defendant has brought the case here on appeal. There was an agreed statement of fact, which is as follows:

"It is admitted in this case:

"That one B. W. Miller, or a person representing himself to be B. W. Miller, deposited in the Iowa State Bank of Mt. Ayr, Iowa, on the 5th day of March, 1925, a check or what purported to be a check on the First National Bank of Englewood, Colo., dated February 6, 1925, for $800, payable to the order of B. W. Miller, and purporting to be signed by Ralph W. Stringer & Co., by R. W. S. That, when said check was so deposited in said Iowa State Bank, it bore the indorsement of said B. W. Miller, or said person representing himself to be said B. W. Miller, and said B. W. Miller was given credit on the books of said bank for a deposit of $800.

"That thereafter, on March 5, 1925, said person representing himself to be B. W. Miller obtained from said Iowa State Bank two cashier's checks each in the sum of $100 payable to the order of B. W. Miller; one of said checks being dated March 14, 1925, the other of said checks being dated March 24, 1925. That in payment for said two cashier's checks said B. W. Miller directed said Iowa State Bank to debit his said account of $800 with the sum of $200.

"That said cashier's checks were issued by said Iowa State Bank to said person and a debit of $200 was entered against the account of said B. W. Miller, so that the books of said bank after the issuance of the said two cashier's checks showed that the said B. W. Miller had a balance remaining to his credit of $600. That the only deposit ever made in said Iowa State Bank by said B. W. Miller was said deposit of $800.

"That, at the time said two cashier's checks were issued to said B. W. Miller by said bank, said cashier's checks were postdated as aforesaid, by said bank for the express purpose of enabling said bank to send said check for $800 to said First National Bank of Englewood, Colo., and obtain returns on said check for $806 before the due date of said cashier's checks.

"That, when said check for $800 was sent by said Iowa State Bank to said First National Bank of Englewood, Colo., said check was protested by said Ralph W. Stringer & Co. and payment of said check was refused by said First National Bank of Englewood, Colo., on the 9th day of March, 1925, but said Iowa State Bank did not learn of the fact that payment of said check had been refused until the 11th or 12th day of March, 1925, and that said Iowa State Bank has not been able to collect said check for $800 from the person by whom it was signed.

"That on the 7th day of March, 1925, the said Iowa State Bank received a Western Union Telegram as follows:

"`St. Joseph, Mo. 1:25 p. m. March 7, 1925.

"`Iowa State Bank, Mt. Ayr, Iowa.—Two one hundred dollar cashier checks lost. Do not pay.

                                             "`B. W. Miller.'
                

"Thereafter, to wit, on the 9th day of March, 1925, the two cashier's checks referred to were presented to the Iowa State Bank for payment by the Mt. Ayr State Bank of Mt. Ayr, Iowa, and were protested and payment was refused by defendant on said date.

"That notice of protest was mailed by Clinton D. Allen on said date to B. W. Miller, the Mt. Ayr State Bank, Tootle Lacy National Bank, W. W. Arnold, W. C. Hulett, and all other indorsers, including the plaintiffs in this case.

"That when said checks were presented for payment, they did not bear or purport to bear the same date as the dates which had been originally written at the time said checks were issued, but that the figures before the numeral `4' on the date of each check were partly obliterated by pens being drawn in heavy circles so as to practically obliterate the original figures `1' and `2' which had been written before the figure `4' on the date, thereby changing the date of said checks from that which they originally bore so as to make them purport to be dated March 4, 1925. That the blots obliterating a part of the original dates of each check were shown to the cashier of the Mt. Ayr State Bank as well as to one Frank F. Fuller on the 9th day of March, 1925, prior to the time of protest on said March 9, 1925, prior to the time the payment of said checks was refused by the said Iowa State Bank of Mt. Ayr.

"It is further admitted that the name B. W. Miller as appears in pen and ink on the back of each of said cashier's checks is the signature of said B. W. Miller or the person representing himself to be B. W. Miller, who opened said account with the Iowa State Bank and the man to whom said cashier's checks were issued.

"It is also admitted that the section of the "statutes of Iowa pleaded in plaintiff's reply correctly sets out the statute of Iowa.

"It is further admitted that plaintiffs' attorney, acting for plaintiffs, wrote Plaintiffs' Exhibit 1 to the defendant; that the defendant received Plaintiffs' Exhibit 1 on the 31st day of March, 1925, and that Plaintiffs' Exhibit 2 was written by Frank F. Fuller, as attorney for the defendant, and that Plaintiffs' Exhibit 2 was written for and on behalf of defendant by defendant's attorney; that Plaintiffs' Exhibit 3 was written and mailed to the defendant April 1, 1925, by the attorney for the plaintiffs acting for and on behalf of plaintiffs; Plaintiffs' Exhibit 3 was received by the defendant on April 2, 1925; and that Plaintiffs' Exhibit 4 is a reply to Plaintiffs' Exhibit 3, and was written by Frank F. Fuller acting as the attorney for the defendant, and that he was authorized by the defendant to write Plaintiffs' Exhibit 4 for the defendant."

After the agreed statement of facts was offered in evidence, the plaintiff introduced Exhibits 5 and 6, being the cashier's checks sued on. Defendant objected to the introduction of the checks only for the reason that the checks sued on had different dates from the checks offered in evidence.

The petition during the course of the trial was amended so as to show proper date of the checks. Letters were introduced showing demand and refusal to pay. The evidence further showed that the checks were cashed by one of the plaintiffs for its face value; that plaintiff, who cashed the check, testified he did not scrutinize the face of the check and did not pay any attention to the ink blots. A photostatic copy of the two checks is filed with the abstract of record. The evidence shows that the first figure in the date in both checks had been changed; that the change was made by the use of a different colored ink from that in which the check was written. The second letter on Exhibit 5 was also changed by making the figure "1" into a "4."

The cashier of defendant bank testified he had been in the banking business for 16 years, and that the change in the checks was easily...