Fitzwilliams v. Northwestern Trust Co.

• Decision Date: 06 November 1928
• Docket Number: No. 19963.,19963.
• Citation: 10 S.W.2d 334
• Parties: FITZWILLIAMS v. NORTHWESTERN TRUST CO. et al.
• Court: Missouri Court of Appeals

10 S.W.2d 334

FITZWILLIAMS v. NORTHWESTERN TRUST CO. et al.

No. 19963.

St. Louis Court of Appeals. Missouri.

November 6, 1928.

Rehearing Denied November 20, 1928.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by C. B. R. Fitzwilliams against the Northwestern Trust Company and others. From an adverse judgment, the named defendant appeals. Affirmed.

Leahy, Saunders & Walther, of St. Louis, for appellant.

John B. Dale, D. J. O'Keefe, and George W. Wellman, all of St. Louis, for respondents.

BENNICK, C.

This is an action for the conversion of certain Liberty bonds, brought by plaintiff against Northwestern Trust Company, Sperry Manufacturing Company, and H. G. Baumhoff, the latter's president, as defendants. At the close of plaintiff's case, the court sustained a demurrer to the evidence interposed by defendant Baumhoff. The trial thereafter proceeded as to the corporate defendants, resulting in the return of a verdict in favor of plaintiff, and against both of such defendants, for actual damages aggregating $1,433, and, from the judgment rendered, defendant Northwestern Trust Company alone has duly appealed.

In view of the fact that the sufficiency of the petition is vigorously attacked in the brief of counsel for appellant, upon the grounds that two separate causes of action, not affecting all of the parties, had been improperly joined, and that such causes of action had not been separately stated, with the relief sought by each, in a manner that they might be intelligibly distinguished, it becomes necessary, in fairness to all parties concerned, to set out the material portions of the petition in the language of the pleader, as follows:

"Plaintiff further states that on or about February 16, 1921, plaintiff gave his written order of purchase to the defendant Sperry Manufacturing Company for 200 gross quick action, a fertilizing preparation, at $5 per gross; that upon the request of, and the solicitation of, the defendant Sperry Manufacturing Company, and as evidence of plaintiff's good faith in so placing said order, and his acceptance of the delivery and payment therefor, at the aforesaid agreed purchase price, plaintiff accepted and delivered to defendant Sperry Manufacturing Company his certain trade acceptance, dated February 16, 1921, due 60 days after date, payable to the order of the defendant Sperry Manufacturing Company, for the sum of $1,000, and wherein it was stipulated that said trade acceptance was given for the purchase of the aforesaid goods, as ordered in plaintiff's order aforesaid, same being specified in said trade acceptance as order No. 1001, and payable at the Mercantile Trust Company, in the city of St. Louis, Mo.; that at the time plaintiff accepted said trade acceptance, it was stipulated and agreed that the aforesaid trade acceptance was executed by plaintiff as aforesaid as an evidence of good faith on the part of plaintiff in the matter of his aforesaid order, and that the same would become due and payable only in the event of, and upon condition that, the product mentioned in said order No. 1001 was delivered by the defendant Sperry Manufacturing Company to plaintiff, or to his order, on or prior to the due date of said trade acceptance, to wit, April 16, 1921; that thereafter, and on or about February 18, 1921, the defendant Sperry Manufacturing Company, through its officers and agents, stated to plaintiff that it would not accept the aforesaid trade acceptance of plaintiff, and proceed with the manufacture of plaintiff's aforesaid order, unless and until plaintiff would secure the payment of his aforesaid trade acceptance with collateral of sufficient value as to make the same secure in its payment when due, and upon the defendant Sperry Manufacturing Company's compliance with its aforesaid agreement to manufacture and deliver to plaintiff the product mentioned in plaintiff's aforesaid order; that the collateral security required should be acceptable not only to said Sperry Manufacturing Company, but to its banker as well, to wit, the defendant Northwestern Trust Company; that in compliance with the request of said defendant Sperry Manufacturing Company for security as aforesaid of plaintiff's trade acceptance, and on or about February 18, 1921, plaintiff agreed to, and did, deliver to the defendant Northwestern Trust Company two United States Liberty bonds to the amount and par value of $1,100; * * * that said bonds were by the defendant Northwestern Trust Company aforesaid attached to plaintiff's aforesaid trade acceptance, and deposited with the defendant Northwestern Trust Company, to be held by it * * * until such time as defendant Sperry Manufacturing Company made delivery of the merchandise mentioned in plaintiff's aforesaid order No. 1001. * * *

"It was further stipulated and agreed at the time plaintiff executed the aforesaid trade acceptance, and at the time of the delivery of plaintiff's Liberty bonds to the defendant Northwestern Trust Company, * * * by and between plaintiff and the defendants, that in the event the Sperry Manufacturing Company failed to make delivery of the aforesaid merchandise called for in plaintiff's said order No. 1001, within the time stipulated, then, and in that event, plaintiff's said trade acceptance would be canceled, and by the defendant Northwestern Trust Company returned to plaintiff, together with plaintiff's aforesaid Liberty bonds.

"Plaintiff further states that the defendant Sperry Manufacturing Company failed and refused to deliver the merchandise called for in plaintiff's aforesaid order No. 1001, dated February 16, 1921, within the time specified in said order, or at any other time.

"Plaintiff further states that the defendant Sperry Manufacturing Company, by and through its officers and agents, and the defendant H. G. Baumhoff, in his individual capacity, without authority from plaintiff, and in violation of the conditions of the agreement aforesaid, indorsed plaintiff's aforesaid acceptance to the defendant Northwestern Trust Company, the date of which, and the circumstances under which the same was done, being unknown to plaintiff; that the defendant Northwestern Trust Company thereby and thereafter assumed to be the owner and holder of plaintiff's aforesaid trade acceptance, and of plaintiff's aforesaid United States Liberty bonds, deposited as aforesaid with the defendant Northwestern Trust Company * * * as security for the payment of plaintiff's trade acceptance.

"Plaintiff further states that he repeatedly notified the defendant Northwestern Trust Company of the failure and refusal of the defendant Sperry Manufacturing Company to deliver the merchandise mentioned in the aforesaid order No. 1001, or any part thereof, within the time specified in said order, or at any other time, and has repeatedly made demand upon defendant Northwestern Trust Company for the delivery to plaintiff of plaintiff's aforesaid trade acceptance and * * * of his aforesaid United States Liberty bonds of amount and par value of $1,100, * * * but said defendant Northwestern Trust Company has failed and refused to deliver to plaintiff his aforesaid trade acceptance, and the aforesaid Liberty bonds deposited as security therefor, unless and until plaintiff would pay to the defendant Northwestern Trust Company the amount and full value of plaintiff's said trade acceptance, which said defendant Northwestern Trust Company pretended and claimed to hold as collateral security for a certain unpaid promissory note of the defendant Sperry Manufacturing Company, and all of said defendants unlawfully, maliciously, and oppressively converted plaintiff's said trade acceptance and his aforesaid Liberty bonds to their own use, and willfully, maliciously, recklessly, and in total disregard of plaintiff's rights thereto, have held, and now threaten to sell at public auction, plaintiff's aforesaid trade acceptance, and plaintiff's aforesaid Liberty bonds, unless plaintiff will pay to the defendant Northwestern Trust Company its demand for * * * $1,000, with interest at the rate of 7 per cent. per annum from the 18th day of February, 1921."

Of the several pleadings filed by the respective defendants, only those of the appellant will need to be considered. At the outset it demurred to the petition for the reasons stated heretofore, and, its demurrer having been overruled, it answered, alleging that, on or before February 16, 1921, defendant Sperry Manufacturing Company solicited a loan from it in the sum of $1,000, and offered as security for the payment thereof the trade acceptance for a like sum theretofore drawn upon plaintiff; that appellant refused to accept such security, and refused to make the loan; that thereafter, on February 20, 1921, defendant Sperry Manufacturing Company offered to secure said loan with the trade acceptance, together with the further pledge of two Liberty bonds in the sum of $1,100; that thereafter the loan was consummated, and defendant Sperry Manufacturing Company, with the knowledge, consent, and approval of plaintiff, pledged with appellant, as security for the payment of the note, the trade acceptance and bonds in question.

Appellant further alleged in its answer that, at the maturity of the note given it by defendant Sperry Manufacturing Company, default was made by the latter in the payment thereof; that it demanded payment of the principal and interest thereon; that thereafter, with the approval and consent, and at the request, of plaintiff, it forebore foreclosing the said collateral and selling the same; that, defendant Sperry Manufacturing Company continuing in default, appellant thereafter, on October 10, 1922, sold the bonds and trade acceptance at public auction to the highest bidder for the sum of $1,089.50, as provided by the collateral agreement contained in the note; that the proceeds of such sale were insufficient to satisfy the note, with...