Ihl v. Bank of St. Joseph

• Decision Date: 05 May 1887
• Citation: 26 Mo.App. 129
• Parties: OTTO IHL, Appellant, v. THE BANK OF SAINT JOSEPH, Respondent.
• Court: Kansas Court of Appeals

26 Mo.App. 129

OTTO IHL, Appellant, v. THE BANK OF SAINT JOSEPH, Respondent.

Court of Appeals of Missouri, Kansas City.

May 5, 1887

APPEAL from Platte Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

Statement of case by the court.

The petition in this case was as follows: " Plaintiff states that defendant is a corporation organized under the laws of the state of Missouri, and is now, and was, at all times hereinafter named, engaged in business in said county as a banking institution; that, on the twentieth day of July 1881, plaintiff drew his draft upon Vergho, Ruhling &amp Company, of Chicago, Illinois, payable to defendant's order, for the sum of five hundred dollars, and delivered the same to defendant; and, also, upon the twenty-first day of July, 1881, drew another draft upon said Vergho, Ruhling & Company, payable to defendant's order, for the sum of one thousand dollars, and delivered the same to defendant that both of said drafts were so delivered to defendant for collection, and were paid to, and collected by, defendant for, and on account of, plaintiff; that defendant, at the time of the delivery aforesaid, agreed to pay plaintiff, on the proceeds of said drafts, interest at the rate of six per cent. per annum, from the time the same should be paid to defendant, and during the time the same should be deposited with defendant; that the sum of fifteen hundred dollars, as aforesaid, was paid to defendant on the twenty-fifth day of July, 1881, and has been deposited with the defendant from that date until the present time; that, on the ____ day of ____, 1882, defendant paid to plaintiff ninety dollars--one year's interest on said deposit; that, on the ____ day of ____, 1883, plaintiff demanded payment of said deposit, together with interest, except the sum of ninety dollars, paid as aforesaid, and defendant failed and refused to pay the same, and said deposit is now due and unpaid to plaintiff; wherefore, plaintiff prays judgment for the sum of fifteen hundred dollars, with interest, as aforesaid, from the twenty-fifth day of July, 1881, after allowing said payment of ninety dollars, and his costs in this behalf."

The answer was as follows: " Defendant, for amended answer, denies each and every allegation contained in plaintiff's petition. For further defence, defendant charges the facts to be, that, on or about the twenty-first day of July, 1881, Christian Frenger deposited to his credit in the defendant bank, the drafts mentioned in plaintiff's petition, with instructions to defendant to forward the same to Chicago for collection, and to receive the proceeds thereof, and when so received by defendant, to place the same to the credit of said Frenger, in defendant bank; that defendant, at the time aforesaid, received said drafts from said Frenger, under the instructions, aforesaid, given by him, and, in pursuance to said instructions, forwarded the same to Chicago for collection, and, on the twenty-fifth day of July, 1881, received the proceeds of said draft, and placed the same to the credit of said Frenger, in said defendant bank, and on the day last aforesaid, paid out the same to said Frenger. Defendant having fully answered, asks to be discharged with its costs."

The reply was a general denial of the new matter set up in the answer. The plaintiff was the surviving partner of the firm of Hoffman & Ihl, and wished to make an administrator's bond, so that he might administer upon the estate of said partnership.

The evidence introduced by the plaintiff tended to show that the plaintiff and Christian Frenger, the latter being, at that time, the paying and receiving teller of the defendant bank, made an arrangement to the effect that Frenger would execute said bond, as one of three sureties for plaintiff, if the plaintiff would deposit five hundred dollars in the bank to indemnify Frenger against loss as such surety, and would permit the money to remain there until the plaintiff should be discharged as administrator. The evidence of plaintiff also tended to prove that the agreement was, that he was to deposit the money in the bank to his own credit, and not to that of Frenger. But the plaintiff introduced in evidence an instrument, termed by him a definition of trust, executed by himself and Frenger, some time after the making of said agreement, and after the deposit of the drafts mentioned in the petition, in the defendant bank, and the collection of said drafts by the bank. Said instrument was as follows:

" Whereas, Christian Frenger, Carl Weigel, and Ewald Padberg, are securities upon the bond of Otto Ihl, as administrator of the partnership estate of Hoffman & Ihl, in the probate court, in and for Buchanan county, Missouri; and, whereas, in order to indemnify said Frenger, Weigel, and Padberg, against loss on account, or growing out, of said bond, said Otto Ihl has deposited in the Bank of St. Joseph, the sum of fifteen hundred dollars, in the name of C. Frenger, as trustee. Now these presents witnesseth, that said sum of money shall remain on deposit in said bank, for the purpose aforesaid, until the said securities are, or shall be, finally discharged from any and all obligations, or liability growing out of said administration bond, and when finally discharged, said money shall be repaid to said Otto Ihl. But, in the event that said securities shall be required, or shall become liable, to pay any money, on account of having executed said bond, the aforesaid money of fifteen hundred dollars may be applied to indemnify them against any such loss or payment to the extent necessary for that purpose.

Signed in duplicate, August 2, 1881.

OTTO IHL,

CHRISTIAN FRENGER.'??

From said instrument, and other evidence introduced by plaintiff, the jury might have inferred that the agreement between plaintiff and Frenger was, that the plaintiff would deposit in the bank the sum of five hundred dollars, to the credit of Frenger, as trustee.

The plaintiff's evidence tended to further prove, that, in pursuance of his agreement with Frenger, he drew the following draft:

" $500. ST. JOSEPH, MO., July 20, 1881.

Pay to the order of the Bank of St. Joseph, five hundred dollars, value received, and charge to the account of

OTTO IHL.

To Vergho, Ruhling & Co., Chicago, Ill." --

And handed the same over the counter in the bank to Frenger.

The plaintiff's evidence also tended to show that, next day, plaintiff made an arrangement with Messrs. Padberg and Weigel, by which they agreed to execute the said bond as his other sureties, if the plaintiff would deposit in the defendant bank the sum of one thousand dollars, to indemnify them against loss as such sureties, and would keep the money in said bank until he should be discharged as such administrator; and that, in pursuance of such agreement, he drew the following draft:

" $1,000. ST. JOSEPH, MO., July 21, 1881.

Pay to the order of the Bank of St. Joseph, one thousand dollars, value received, and charge to the account of

OTTO IHL.

To Vergho, Ruhling & Co., Chicago, Ill." --

And handed the same to Frenger in the bank.

The plaintiff's evidence tended to show that the drafts were delivered to Frenger as the receiving teller of the bank, for collection by the bank, to be credited, when collected, to the plaintiff's account. But, from the so-called definition of trust, and the other evidence, the jury might have reasonably inferred that the drafts were deposited in the bank by plaintiff, for collection by it, to be credited to the account of Frenger, as trustee.

Upon each of the drafts were the following endorsements:

" First endorsement: Pay L. J. Gage, cashier, or order, for collection, on account of the Bank of St. Joseph.

GEORGE C. HULL, Cashier."

" Second endorsement: Paid.

L. J. GAGE, Cashier."

The drafts were entered upon the " collection register" of the defendant bank, were duly collected, as indicated by the above endorsements, and the proceeds of the drafts were credited to the account of " C. Frenger" by the bank, in pursuance to Frenger's directions to that effect.

Frenger was the receiving and paying teller of the bank at the time, and it was his duty to receive drafts for collection by the bank. On the day on which the credit was given to Frenger, he drew the entire amount thereof out of the bank, and converted the same to his own use. There was no evidence of collusion between the bank and Frenger in the latter's misappropriation, or that the bank realized any profit or benefit in any way therefrom.

Some time after these transactions, with the consent and approval of his sureties, the plaintiff made a demand on the defendant bank for the money. The bank declined to pay.

Frenger testified as a witness for the bank. His testimony tended to prove that the agreement between him and plaintiff was, that plaintiff should place five hundred dollars in his hands, to be left with him until the estate was finally settled, and the administrator discharged, and that he (Frenger) was to pay six per cent. interest per annum on the money, while it remained in his hands. Said testimony tended also to prove that the agreement between plaintiff and Messrs. Padberg and Weigel, was to the same effect. Said testimony tended to prove, further, that the drafts were handed to him by plaintiff with instructions for him to have the same collected, and for him to hold the proceeds in pursuance of the said agreements.

The defendant had, prior to the trial, taken the deposition of Frenger, to be used in this case. At the close of the evidence, introduced by the plaintiff in rebuttal, the defendant offered said deposition in evidence. To which offer the plaintiff objected on the grounds that Frenger was present, and...