Gate City National Bank v. Boyer
| Decision Date | 08 January 1912 |
| Citation | 142 S.W. 487,161 Mo.App. 143 |
| Parties | GATE CITY NATIONAL BANK, Appellant, v. J. H. BOYER, Defendant; Z. M. BOYER, Interpleader, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
John L McNatt and McCune, Harding, Brown & Murphy for appellant.
(1) The verdict in this case was grossly against the evidence. There was no creditable evidence to support it. The court should have granted a new trial on that ground. The discretion of the trial court is not absolute. This court will interfere with such discretion if it appears to have been unwisely exercised. Gould v. St. John, 207 Mo. 631. (2) The court erred by refusing to give instruction "G" offered by plaintiff. By so doing it denied plaintiff the right to its legal presumption that the father was the owner of the note; it denied plaintiff its prima facie case; and denied the jury the right to pass upon all subsequent transactions between the father and son touching the ownership of the note. Keim v. Vette, 167 Mo. 399; Horton v. Bayne, 52 Mo. 533; Baer v Braves, 46 Mo.App. 245. (3) The court erred in giving instruction No. 1 for the interpleader. Jones v Jones, 57 Mo. 138; Chouteau v. Works, 83 Mo. 73. (4) The court erred by giving instruction No. 2 for the interpleader. Peck v. Ritchey, 66 Mo. 114; Welkerson v. Thompson, 82 Mo. 317. (5) The court erred by giving instruction No. 4. It assumes the interpleader had a claim to the property. Washington v. U. Mory, 52 Mo. 480.
J. M. McPherson and I. V. McPherson for interpleader.
(1) There was no evidence upon which to predicate instruction "G." We therefore think refusal of instruction "G" was not error. Haskins v. Railroad, 58 Mo. 302; Cargyle v. Wood, 63 Mo. 501; Isler v. Storts, 30 Mo.App. 163; Carder v. Primm, 52 Mo.App. 102; Paquin v. Railroad, 90 Mo.App. 118; Sisk v. Ins. Co., 95 Mo.App. 695; Sowders v. Railroad, 127 Mo.App. 119; Bank v. Trust Co., 187 Mo. 494; Viertel v. Viertel, 111 S.W. 579. (2) The giving of instruction "I" correctly declared the law of this case. Torreyson v. Turnbaugh, 105 Mo.App. 443; Graham Paper Co. v. Crowther, 92 Mo.App. 275; Bank v. Totten, 114 Mo.App. 106. (3) Plaintiff complains of giving instruction 3 on behalf of the interpleader. This instruction was proper under the evidence in this case. Byrne v. Becker, 42 Mo. 264; Trust Co. v. Robb, 142 F. 78; Phelps, Dodges, Palmer Co. v. Sampson, 113 Iowa 145, 84 N.W. 1051; Garmon v. Stevens, 13 Kas. 447; Brown v. Brown, 138 Mass. 386; Anslyn v. Franke, 11 Mo.App. 508; Wheeler v. Estate, 63 N.E. 975, 158 Ind. 687; State v. Foley, 144 Mo. 600.
This is an action commenced in the circuit court of Lawrence county by the Gate City National Bank against J. H. Boyer upon a certain promissory note executed by J. H. Boyer on January 15, 1908, to the Miners and Merchants Bank of Aurora in the sum of $ 4,306.58. The note was subsequently discounted by the plaintiff, and Boyer having left the state, the plaintiff, in October, 1910, sued out a writ of attachment on the ground that J. H. Boyer was a non-resident of the state and under this writ seized in the hands of the Bank of Aurora two promissory notes and the deed of trust securing them as the property of J. H. Boyer. Thereafter, Z. M. Boyer appeared as interpleader, claiming title to the two notes seized. Upon trial before a jury the interpleader had judgment from which the plaintiff has appealed.
One of the notes seized was for $ 600 and the other for $ 700, both being dated October 20, 1908, payable to Z. M. Boyer three years after date with interest at eight per cent. per annum, and were executed by N. V. H. Walker and wife, being secured by a deed of trust on real estate. At the time the notes were executed, both Walker and J. H. Boyer resided at Aurora, in Lawrence county, Missouri. Z. M. Boyer was a resident of Portland, Oregon, and was an insurance agent, his business taking him to different parts of the country, and he was frequently away from home at long periods of time. J. H. Boyer was a director in the Miners and Merchants Bank of Aurora, of which his son-in-law was the cashier. J. H. Boyer and Walker were old friends. Walker applied to him for a loan which he was unable to make because of lack of funds, but he made an effort to get the money for Walker from different persons. Among others, he applied to one of his clients by the name of Stewart in Kansas City and went to see her but she was unable to furnish the money, and, having promised the money, his son, Z. M. Boyer, the interpleader, to complete the transaction, consented to make the loan himself. The evidence tends to show that at the time the notes were executed, J. H. Boyer had entire charge of making the loan, and that Walker knew nothing of Z. M. Boyer having any interest whatever in the loan. The notes, however, were executed to Z. M. Boyer, but Walker testified he did not notice that fact.
The evidence tends to show that Z. M. Boyer furnished $ 700 of his own funds in making the loan; that he drew his check on the Security Savings and Trust Company of Portland, Oregon, for the sum of $ 600, payable to J. H. Boyer, which check was deposited in the Miners and Merchants Bank of Aurora on the date the loan to Walker was made; that on October 21, 1908, this check passed through the Gate City National Bank, bearing its stamp, and that in the regular course of business it reached the Security Savings and Trust Company of Portland, Oregon, where it was charged to the account of Z. M. Boyer and duly paid; that on the same day, Z. M. Boyer drew another check on the Security Savings and Trust Company of Portland for the sum of $ 100, payable to J. H. Boyer, which, with the check for $ 600, made the sum of $ 700; that this check on October 21, 1908, likewise passed through the Gate City National Bank, as shown by its stamp, and was duly honored by the Security Savings and Trust Company of Portland and paid out of the account of Z. M. Boyer. As to the other $ 600--to make up the loan of $ 1,300 to Walker--both Z. M. Boyer and J. H. Boyer testified that this amount was loaned to Z. M. Boyer by J. H. Boyer on the day that the Walker loan was made.
On the day the loan was completed, the note for $ 600 was indorsed by Z. M. Boyer, and the two notes were left in the possession of J. H. Boyer. The reason given for indorsing the note for $ 600 and not the note for $ 700 was that the notes were drawn "payable at the option of the maker in sums of $ 100 or multiples at any interest paying date," and that Z. M. Boyer indorsed this note to give Walker the opportunity, in case he should wish to do so, to pay any part of the loan.
The money for which the two notes were executed was paid to Walker by the personal check of J. H. Boyer. All the interest payments were made to J. H. Boyer, and the subsequent correspondence of Walker in regard to the notes was with J. H. Boyer. Subsequently, in June or July, 1909, J. H. Boyer moved to Portland, Oregon. The testimony goes to show that soon after his arrival there, he turned these notes together with the deed of trust securing them and the insurance policy over to his son, Z. M. Boyer, who then resided in Portland, and that Z. M. Boyer took possession of them and deposited them in his safe deposit box in the Security Savings and Trust Company of Portland. That J. H. Boyer also had a key to this box and that they used it jointly in which to deposit their private papers. Afterwards, Walker having made arrangements for a loan with a less rate of interest, desired to pay off these notes and applied to J. H. Boyer for that purpose.
It appears that after the time of the execution of the notes, J. H. Boyer drew various checks on the account of Z. M. Boyer in the Security Savings and Trust Company of Portland and signed them "Z. M. Boyer, by J. H. Boyer;" that the aggregate amount of such checks was $ 927.97, of which amount Z. M. Boyer claims $ 712.56 went to repay his father for the money loaned at the time the two notes of Walker were executed.
Subsequently, when Walker applied to pay the notes, the note for $ 700 was indorsed by J. H. Boyer, and the notes, deed of trust, and insurance policy, with a letter from J. H. Boyer, were sent to the Bank of Aurora for collection. To the papers was attached a draft by J. H. Boyer for the amount due on the notes.
The only evidence offered as to the solvency of J. H. Boyer tended to show that at the time he executed his note for $ 4,306.58 to the Miners and Merchants Bank of Aurora he was not otherwise indebted. The note itself was secured. No evidence was offered to show that at any time J. H. Boyer was insolvent or in failing circumstances, at or subsequent to the date he executed the said note for $ 4,306.58.
The statute concerning interpleas in attachment suits is as follows: "Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, and issues may be made upon such interplea, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay." [Sec. 2345, R. S. 1909.] An interplea under this section is a statutory replevin engrafted on the attachment suit, and in order for the interpleader to prevail he must have legal title or right to immediate possession. [Brownwell & Wight Car Co. v. Barnard, 139 Mo. 142 40 S.W. 762; Rice, Stix & Co. v. Sally, 176 Mo. 107, 75 S.W. 398.] The case was tried upon the theory that the right of possession of the notes executed by Walker depended upon their actual ownership, the plaintiff claiming that they were the property of J. H. Boyer, and the interpleader claiming the notes on account...
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