Eans' Adm'r v. Exch. Bank of Jefferson City

• Decision Date: 31 October 1883
• Citation: 79 Mo. 182
• Parties: EANS' ADM'R, Plaintiff in Error, v. EXCHANGE BANK OF JEFFERSON CITY.
• Court: Missouri Supreme Court

79 Mo. 182

EANS' ADM'R, Plaintiff in Error,

v.EXCHANGE BANK OF JEFFERSON CITY.

Supreme Court of Missouri.

October Term, 1883.

Error to Cole Circuit Court.--HON. G. W. BURCKHARTT, Judge.

REVERSED.

Belch & Silver and Ewing & Hough for plaintiff in error.

J. R. Edwards, Owens and Smith & Krauthoff for defendant in error.

HENRY, J.

This suit was instituted in the Cole circuit court, and the following is the petition filed:

“Plaintiff for his amended petition states that Wm. H. Eans departed this life in Cole county on the 27th day of September, 1878; that plaintiff was thereafter duly appointed administrator of the estate of Wm. H. Eans by the county court of Cole county, which court then had probate jurisdiction in said county, and plaintiff accepted said appointment and qualified as said administrator. Plaintiff states that on September 1st, 1878, the National Exchange Bank of Jefferson City was a banking corporation created and organized under the act of congress of the United States of June 3rd, 1864, and the acts amendatory thereto, providing for the creating and establishment of national banks, and was carrying on the business of banking at Jefferson City, Missouri, under the name and style of National Exchange Bank of Jefferson City. Plaintiff states that on the 1st day of September, 1878, Wm. H. Eans, plaintiff's intestate, delivered to and deposited with the aforesaid bank, at its place of business in Jefferson City, the sum of $1,500 in current funds, which said money said National Exchange Bank of Jefferson City accepted and received from said Wm. H. Eans, and became indebted to him therefor, as was evidenced by its certificate of deposit, which said bank delivered to said Wm. H. Eans on said day, and which certificate of deposit is now lost, and, therefore, plaintiff is unable to file it herewith. Plaintiff states that said bank promised and agreed with said Wm. H. Eans to pay to him interest on said deposit for the use thereof at the rate of five per cent per annum from the date of the making thereof until the same should be withdrawn. Plaintiff states that afterward, to-wit: on or about the 1st day of May, 1879, the said National Exchange Bank of Jefferson City went into liquidation and closed its business and ceased its organization as said national bank, in conformity with the act of congress in such cases made and provided, and thereupon afterward, to-wit: on or about the 23rd day of May, 1879, the defendant was legally organized and created a banking corporation for purposes of deposit and discount under the laws of the State of Missouri, under the name and style of “Exchange Bank of Jefferson City,” and has, under said name, since said time, been engaged in carrying on its business of banking at Jefferson City, Missouri. Plaintiff states that defendant, so organized and created a banking corporation aforesaid, came into possession of and received as successors to the National Exchange Bank of Jefferson City aforesaid, and for plaintiff's use, the said sum of $1,500 deposited in said last bank by plaintiff's intestate, and defendant thereupon became liable to plaintiff, as administrator of the estate of said Wm. H. Eans, for said deposit so received, with interest thereon at the rate of five per cent per annum from the 1st day of September, 1878; and plaintiff states that as said administrator he did, on the 11th day of November, 1879, demand payment of said indebtedness, which was refused, and is still refused, and the same remains wholly unpaid, wherefore plaintiff asks judgment against the defendant for said sum of $1,500 with interest thereon at five per cent per annum from September 1st, 1878, and his costs.”

To this petition a demurrer was sustained by the court, and judgment rendered in favor of defendant, from which plaintiff has duly prosecuted his appeal. The grounds of demurrer are, that the petition does not state facts constituting a cause of action; that it states no facts authorizing plaintiff to sue; that it does not allege that the intestate at his death was the owner of the certificate of deposit; that it is not alleged that it ever came into plaintiff's possession, as administrator; that the certificate being of a negotiable character, plaintiff cannot maintain this suit, without complying with the statute providing for the protection and indemnity of defendant in such case; that there is no allegation showing a liability, in law, of defendant for the debts of the National Exchange Bank, and also that if, as alleged, said national bank paid the sum of money sued for, to the defendant as trustee for plaintiff's use, such trust cannot be enforced in a suit at law.

1. PLEADING; suit by administrator.

That there are sufficient facts alleged to show plaintiff's right to sue, we have no doubt. Bliss on Code Pleading, § 264; Duncan v. Duncan, 19 Mo. 368; Bird v. Cotton, 57 Mo. 568.

2. _____: facts necessarily implied need not be stated.

Nor do we think that the petition fails to...