Farmers' Bank of Billings v. Schmidt

• Decision Date: 17 February 1930
• Parties: FARMERS BANK OF BILLINGS, A CORPORATION, APPELLANT, v. FRANK SCHMIDT, RESPONDENT. [*]
• Court: Missouri Court of Appeals

25 S.W.2d 525

223 Mo.App. 1098

FARMERS BANK OF BILLINGS, A CORPORATION, APPELLANT, v. FRANK SCHMIDT, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

February 17, 1930

[Copyrighted Material Omitted]

223 Mo.App. 1098 at 1105.

Original Opinion of February 17, 1930, Reported at: 223 Mo.App. 1098.

Motion for rehearing overruled.

OPINION

ON MOTION FOR REHEARING.

On motion for rehearing appellant insists that respondent admitted on the witness stand that he had collected and kept part of a dividend received by him from the trustee in bankruptcy upon his note from the Hardware Company and insists that he could not accept payment upon the note of the Hardware Company to him and at the same time contend that said note was not to be paid. As we view the testimony of respondent it is not of such a character as to necessarily amount to an admission that he collected and intentionally retained dividends paid by the trustee of the bankrupt estate of the Hardware Company on the note given to him by the Hardware Company in connection with the bank transaction. He testified in substance that the presentation of this note of the Hardware Company to him for allowance in the bankruptcy court against the Hardware Company was done at the request of the bank and not upon his own account. He also held a note of his own against the Hardware Company for $ 635 which was allowed to him against the estate and when dividends were paid he was sent one check to cover the dividends on both notes and he attempted to pay to the bank the dividends received on the note of the Hardware Company to him given in connection with his note to the bank and retain the dividend on the other note to him. This shows that he did not intend to retain any part of the dividends received on the note connected with the bank transaction as his own. The question of his intention in that regard was clearly a question for the jury.

The motion for rehearing will be overruled.

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Notes:

^[*]Corpus Juris-Cyc References: Actions, 1CJ, section 52, p. 958, n. 39; Appeal and Error, 4CJ, section 2853, p. 876, n. 78; Bills and Notes, 8CJ, section 409, p. 259, n. 43; section 1299, p. 995, n. 70; section 1378, p. 1064, n. 81; Evidence, 22CJ, section 837, p. 748, n. 63.

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