Foristel v. Security Nat. Bank

• Decision Date: 21 June 1928
• Docket Number: No. 26706.,26706.
• Citation: 7 S.W.2d 997
• Court: Missouri Supreme Court
• Parties: EDWARD W. FORISTEL v. SECURITY NATIONAL BANK, SAVINGS & TRUST COMPANY, Garnishee; WAYNE COUNTY NATIONAL BANK, Interpleader, Appellant.

7 S.W.2d 997

EDWARD W. FORISTEL v. SECURITY NATIONAL BANK, SAVINGS & TRUST COMPANY, Garnishee; WAYNE COUNTY NATIONAL BANK, Interpleader, Appellant.

No. 26706.

Supreme Court of Missouri, Division Two.

June 21, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED (with directions).

Charles M. Polk and Joseph Renard for appellant.

(1) Interpleader's Instruction 1 directing a verdict in its favor should have been given by the court. (a) The uncontradicted testimony showed that interpleader had purchased the draft and had become the absolute owner thereof, and of any money or property collected thereon by the Security National Bank, Savings & Trust Company. Ayres v. Farmers & Merchants Bank, 79 Mo. 421; Haas v. Fruit Co., 183 S.W. 677; Hendley v. Globe Refinery Co., 106 Mo. App. 20; Jefferson Bank v. Refrigerating Co., 236 Mo. 407; Citizens State Bank v. Ferson, 208 S.W. 136; Renfrow Commission Co. v. Northrup, 222 S.W. 487; Midland National Bank v. Roll, 60 Mo. App. 585; Burton State Bank v. Milling Co., 163 Mo. App. 135; Tapee v. Varley-Wolter Co., 184 Mo. App. 470; Bank v. Gordon, 250 S.W. 649; Cottondale Planting Co. v. Bank, 286 S.W. 427; Cairo Nat. Bank v. Blanton Co., 287 S.W. 639; May v. Bank of Hughesville, 291 S.W. 170. (b) No indorsement was necessary to vest the title to the trade acceptance in the interpleader. Sec. 835, R.S. 1919; Dawson v. Wombles, 123 Mo. App. 345; First National Bank v. Stam, 186 Mo. App. 444; Prather v. Hairgrove, 214 Mo. 161; Lipscomb v. Talbott, 243 Mo. 31. (c) Interpleader was entitled to have the trade acceptance indorsed to it. Moore v. Renick, 95 Mo. App. 202; 13 C.J. 241; Lebrecht v. New State Bank, 229 S.W. 285; Wilson v. National Bank, 176 Mo. App. 73; Crider Bros. v. National Bank, 183 S.W. 648. (d) Interpleader had a prior lien in said trade acceptance. Muench v. Valley Nat. Bank, 11 Mo. App. 144; Michie on Banks and Banking, p. 1389; 7 C.J. 618; Secs. 813, 814, R.S. 1919. (c) The interpleader, as holder of the bill of lading delivered to it by the Thomas Rubber Company, is entitled to the return of the property or any amounts or property received when the bill of lading was surrendered. Burrton State Bank v. Milling Co., 163 Mo. App. 135; Dickson v. Elevator Co., 44 Mo. App. 498; Clary v. Tyson, 97 Mo. App. 586; Skilling v. Bollman, 6 Mo. App. 76, 73 Mo. 665; Kirkpatrick v. Railroad, 86 Mo. 341; Valle v. Cerre, 36 Mo. 575; Davenport Nat. Bank v. Homeyer, 45 Mo. 145; Mo. Pac. Ry. Co. v. McLiney, 32 Mo. App. 166; Bank v. Railroad, 62 Mo. App. 531; Dymock v. Railroad, 54 Mo. App. 400. (2) Plaintiff's Instruction 2 should have been refused by the court, because it required the jury to find that the interpleader acted as the agent of the Thomas Rubber Company and said instruction was unwarranted by the pleadings and testimony. Moreover, the instruction required the jury to base its verdict upon a conclusion of law. Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Yarde v. Hines, 209 Mo. App. 547; Fitzsimmons v. Mo. Pac. Ry. Co., 294 Mo. 551; Karte v. Mfg. Co., 247 S.W. 417; State ex rel. Bank of Summer v. Melton, 213 Mo. App. 662; State ex rel. v. Ellison, 270 Mo. 645. (3) The testimony of plaintiff as to the indebtedness of the Thomas Rubber Company to him should have been excluded, because it was immaterial under the pleadings and served to confuse the jury. Sexton v. Lockwood, 207 S.W. 857; Cantwell v. Johnson, 236 Mo. 575; 22 C.J. 161. (4) Evidence as to the former transactions between the Wayne County National Bank and the Thomas Rubber Company, where trade acceptances had been delivered to the bank unendorsed by the Thomas Rubber Company, should have been admitted by the count, Staroski v. Pulitzer Pub. Co., 235 Mo. 67; Fitzsimmons v. Academy, 81 Mo. 37; 17 C.J. 462; Scudder v. Ames, 142 Mo. 217; Kansas City Transfer Co. v. Neiswanger, 18 Mo. App. 103; Albert Grocer Co. v. Goetz, 57 Mo. App. 10; Wyeth Hardware Co. v. Carthage Hardware Co., 75 Mo. App. 518; Staddon Grocery Co. v. Lust, 95 Mo. App. 261.

Foristel, Mudd, Blair & Habenicht and Harry S. Brooks for respondent.

(1) The attached property — the unendorsed trade acceptance payable to the Thomas Rubber Company and the cashier's check, both given in payment for tires purchased from said rubber company — appeared to be and presumptively were the property of the said rubber company, and the burden of proof was upon the interpleader, to overcome that presumption and establish its ownership and exclusive right to possession. Townsend Wholesale Gro. Co. v. Chamberlain Can Co., 277 S.W. 960; Cochrane v. State Bank, 198 Mo. App. 619; Hoffman v. Nat. Bank, 211 Mo. App. 652. (2) From the facts in evidence the jury could have found and must be presumed to have found that the interpleader was a mere agent of the rubber company for the collection, and did not own the proceeds of the sale of tires. Cochrane v. State Bank, 198 Mo. App. 625; Townsend Wholesale Gro. Co. v. Chamberlain Can Co., 277 S.W. 958; Hoffman v. Nat. Bank, 211 Mo. App. 643; Brigance v. Bank of Cooter, 200 S.W. 668. (3) The credibility of the interested witness Woods, even though uncontradicted by direct evidence offered by plaintiff, was exclusively for the jury. The truth of the matters indicated on the loose-leaf ledger sheet and other loose papers produced by him depended entirely upon his own veracity. It was the exclusive province of the jury to believe him or not, and hence to believe or not the purported effect of the entries on those exhibits. Gannon v. Gas Co., 145 Mo. 502; Cochrane v. State Bank, 198 Mo. App. 626. (4) Woods testimony that the bank made an outright purchase of the draft when it was received from the rubber company was not believable, nor even consistent with the theory of interpleader's counsel at the trial, or now on appeal. Woods' testimony in that and other respects, as well as the attendant circumstances, fully justified the jury in disbelieving him and the defendant's version as to the facts. Gannon v. Gas Co., 145 Mo. 502. (5) It is a matter of common knowledge that sellers of goods ship them to the purchaser consigned to shipper under order bill of lading, attaching draft drawn on purchaser for purchase price, payable to shipper's bank, and deliver the bill of lading with draft attached to shipper's bank for collection. The bank's immediate credit of the amount of the draft to the shipper's account is in the nature of a receipt, and the amount may be charged back to the shipper, upon failure to receive proceeds of collection. Hoffman v. Nat. Bank, 211 Mo. App. 653; Brigance v. Bank of Cooter, 200 S.W. 669; Cochrane v. State Bank, 198 Mo. App. 624. And in the above situation the bank to whom the shipper's bank forwards the draft for collection is the agent of the shipper. Hoffman v. Nat. Bank, 211 Mo. App. 653. (6) Even if interpleader credited the rubber company with the amount of the draft it had a right to charge it back when the collection proceeds were not returned after the attachment. The evidence did not show that this could not be done, or was not in fact done, and the evidence showed that the rubber company was still doing business with the bank at the time of trial. Cochrane v. State Bank, 198 Mo. App. 624; Brigance v. Bank of Cooter, 200 S.W. 669; Townsend Wholesale Gro. Co. v. Chamberlain Can Co., 277 S.W. 958; Midwest Nat. Bank v. Parker Corn Co., 211 Mo. App. 424; Hoffman v. Nat. Bank, 211 Mo. App. 643. (7) Admission of testimony to show that the Thomas Rubber Company owed the plaintiff the indebtedness for which the suit was brought was necessarily harmless (a) because interpleader's counsel himself, in the presence of the jury, practically admitted the indebtedness, and (b) because it could not have affected the result, anyway, and was harmless. (8) Evidence of former transactions between the rubber company and the bank were properly excluded as immaterial and not binding on the plaintiff.

BLAIR, J.

Interplea in the Circuit Court of the City of St. Louis for certain property in the hands of garnishee. The jury found for plaintiff, and interpleader appealed from the judgment entered on the verdict. The value of the property in controversy determines our appellate jurisdiction.

To avoid confusion, we will refer to the parties as they were designated in the trial court. Plaintiff instituted suit against Thomas Rubber Company of Wooster, Ohio, and its individual members, to recover the sum of $10,000 and interest. He sued out an attachment against defendants as non-residents and, on August 14, 1924, caused a garnishment to be served on garnishee bank. Garnishee had in its hands at that time a cashier's check for $2562.37 and a trade acceptance of the Lion Tire Corporation of St. Louis for $8900. Garnishee answered that plaintiff contended that said property belonged to defendant Thomas Rubber Company, and that interpleader claimed it as its own property. Thereafter Wayne County Bank of Wooster (interpleader) filed its interplea in the Circuit Court of the City of St. Louis, claiming that it, and not the defendant Thomas Rubber Company, was the owner of said cashier's check and trade acceptance. Plaintiff filed his answer to such interplea, denying that interpleader was the owner of such property and alleging ownership thereof in Thomas Rubber Company et al., defendants in the main suit.

On July 26, 1924, Thomas Rubber Company had shipped to Lion Tire Corporation of St. Louis a carload of automobile tires, including some tire flaps and inner tubes. The sale price was $11,462.37. By the bill of lading said shipment was consigned to the shipper, Thomas Rubber Company, with instructions to notify Lion Tire Corporation. This bill of lading was endorsed in blank by Thomas Rubber Company and attached to a draft drawn upon Lion Tire Corporation in favor of interpleader for $11,462.37 and signed by Thomas Rubber Company. Said draft was payable "on...