Fritsch v. National City Bank

• Decision Date: 04 March 1930
• Docket Number: No. 21035.,21035.
• Citation: 24 S.W.2d 1066
• Parties: FRITSCH v. NATIONAL CITY BANK OF ST. LOUIS, MO.
• Court: Missouri Court of Appeals

24 S.W.2d 1066

FRITSCH v. NATIONAL CITY BANK OF ST. LOUIS, MO.

No. 21035.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Mary Fritsch against the National City Bank of St. Louis, Mo. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jeffries, Simpson & Plummer, of St. Louis, for appellant.

Ryan & Hopewell, of St. Louis, for respondent.

BENNICK, C.

This is an action brought by plaintiff, the payee, to recover from defendant, the National City Bank of St. Louis, the proceeds of a check paid by the latter upon a forged and unauthorized indorsement. The verdict of the jury was for plaintiff for the aggregate sum of $502.02; and from the judgment rendered, defendant has duly appealed.

In the justice's court, where the case originated, a brief statement was filed by plaintiff, as to the sufficiency of which no question is made on this appeal. No pleading of any sort was filed at any stage of the proceedings on behalf of defendant.

The evidence in the case discloses that on a date prior to October 1, 1926, plaintiff obtained a judgment of $1,000, in the circuit court of the city of St. Louis, against Charles W. Fricke, who was represented in such action by Joseph C. Hopewell, now of counsel for plaintiff. Some time subsequent to the rendition of such judgment, one Dean S. Rogers, who was wholly unknown to plaintiff, called her on the telephone, and after inquiring if she was the judgment creditor therein, informed her that he was in charge of a collection agency, his evident purpose being to obtain authority from her to collect the amount of the judgment. She advised him, however, that she was not interested in his proposition, and that any steps that were to be taken in the matter would have to come from Messrs. Eagleton and Hullverson, who had been her attorneys in that action.

Notwithstanding plaintiff's refusal to accept his services, Rogers forthwith went into court, and caused an execution to be sued out on the judgment, under which the sheriff made a levy upon a truck owned by Fricke, as well as a further levy by way of garnishment upon an account due Fricke from one of his debtors. Being advised by Fricke of what had transpired, Hopewell went to the sheriff's office for the purpose of filing a third party claim to the truck which was subject to a chattel mortgage, where he discovered that the execution and levy had been ordered at the instance and request of Rogers. He thereupon got in touch with Rogers, and effected a settlement of the judgment for the sum of $450.25 and costs, which was based upon the amount due from the garnishee, with some adjustments as to costs and other items.

Following such agreement, on October 1, 1926, Hopewell drew two checks against his personal account at the American Trust Company, one made payable to the sheriff for the amount of the court costs, and the other to the order of plaintiff for $450.25, the amount of the settlement; the latter check being handed to Rogers, who immediately acknowledged satisfaction in full of the judgment upon the records.

On the same day, Rogers cashed the check at defendant bank, by indorsing thereon the name of plaintiff, by himself as attorney in fact, and the check was thereafter cleared in due course on the American Trust Company, where it was paid and charged to Hopewell's account. In February, 1927, Hopewell received an inquiry about the transaction from some one in Rogers' office, whereupon he wrote the plaintiff, advising her of the settlement which had been negotiated; and there is no dispute in the evidence that the information so obtained was the first that plaintiff had, either as to the fact of the settlement and satisfaction of the judgment, or as to the act of Rogers in indorsing her name upon the check and cashing it at defendant bank.

In the consultation which followed in regard to the course that she should take, plaintiff was advised by Hopewell that she might claim the check and sue upon it, and pursuant to such advice, demand was made upon defendant for the payment of the proceeds of the check. Upon the latter's refusal to make such payment, the present action was instituted; and from the judgment which plaintiff recovered, the case is here on defendant's appeal.

The prime insistence of defendant is that no case was made for the jury, and that its requested instructions A and B, in the nature of demurrers to the evidence, should have been given. Instruction A was drawn in the usual peremptory fashion, but instruction B was in the nature of a special demurrer, and was designed to direct a verdict for defendant "because plaintiff ratified the act of Dean S. Rogers in endorsing and cashing the check procured through settlement of plaintiff's judgment against Charles Fricke, by claiming the benefits of said settlement after plaintiff had full knowledge of the acts of Dean S. Rogers in connection with said settlement, including the endorsement and cashing of the check in controversy."

Incidentally it may be noted that while defendant filed no answer, and thus went to trial upon the general issue, its real defense throughout was that of ratification, for all parties agree that everything that Rogers did or purported to do in plaintiff's behalf was wholly without authority, as well as without her knowledge.

As it relates to the law of agency, "ratification" is the express or implied adoption or confirmation, with full knowledge of all material matters, by one person of an act performed in his behalf by another, who at the time assumed to act as his agent in the performance of the particular act, but lacked authority to do so. Griswold v. Haas, 277 Mo. 255, 210 S. W. 356; Lingenfelder v. Leschen, 134 Mo. 55, 34 S. W. 1089; Fleming v. Anderson (Mo. Sup.) 232 S. W. 718; Butts v....