In re Smith

• Decision Date: 31 October 1884
• Citation: 84 Mo. 304
• Parties: Appellant, v. SMITH, Assignee.
• Court: Missouri Supreme Court

84 Mo. 304

Appellant,

v.SMITH, Assignee.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Draffen & Williams for appellant.

(1) The court committed error in overruling appellant's application for a change of venue. R. S. 1879, sec. 3729. (2) The bank ought to be held liable. The bank, under the circumstances, ought to be estopped to deny the certificate of its cashier. Bigelow on Estoppel, p. 451, et seq.; Western, etc., R. R. v. Franklin Bk., 1 Am. and Eng. Corp. cases, p. 46. The appellant gave up and cancelled the note of Alther & Co., in reliance upon the certificates, and was not in the same position as before the transaction. McBride v. Durham, 6 Law Reg. 736. (3) Appellant was a bona fide holder for value, and before maturity of the certificates. Barret v. Schuyler Co., 44 Mo. 197; German Bk. v. International Bk., 71 Mo. 183. (4) The bank should be held responsible rather than an innocent party who relied upon the acts of its cashier as the agent of the bank, and gave up his securities on the faith of the same. Cook v. Bank, 52 N. Y. 96; Irving Bk. v. Weatherford, 36 N. Y. 335.

W. H. Watts and Henry Smith for respondent.

(1) The certificates, on their faces, were legally invalid, and being, in fact, false, are void. Morse on Banks (2nd Ed.) pp. 206, 207, 196, and 197; Claflin v. Bk., 25 N. Y. 293. (2) On their faces the certificates are nonnegotiable, and are, in fact, without consideration to the bank. Bailey v. Smock, 61 Mo. 213; Morse on Banks, p. 64. (3) Their issuance was ultra vires on the part of the bank, and without authority on the part of Alther, as there was no actual deposit. Daviess Co., etc., v. Sailor, 63 Mo. 24; Fletcher v. Bk., 8 Wheat. 360; Story's Agency, secs. 114-115. (4) There is no estoppel against the bank. The principal is never estopped from inquiring into the extent of his agent's authority, and “no act of an agent will estop his principal unless the matter comes within the scope of his agency.” Fouque v. Burgess, 71 Mo. 389; Wheeler v. Givan, 65 Mo. 89; Tate v. Evans, 7 Mo. 419; Tucker v. R. R., 54 Mo. 177; First National Bank v. Gray, 63 Mo. 33; Daviess Co. S.Ass'n v. Sailor, 63 Mo. 24. Lee has lost nothing by reason of the transaction. R. J. Alther is individually liable on the certificates or original notes, so that the doctrine of estoppel does not apply to this case. State v. Lories, 52 Mo. 396; Driskel v. Mateer, 31 Mo. 325; Bales v. Perry, 51 Mo. 449, and 453; Austin v. Loring, 63 Mo. 19 and 22.

MARTIN, C.

This is a proceeding on appeal from the action of an assignee in refusing to allow four certificates of deposit as just demands in favor of plaintiff against the bank assets held by defendant, as assignee. After the appeal was entered in the circuit court, the parties appeared by their respective attorneys and waived a trial by jury. After the case had been pending in the circuit court a long time, the plaintiff, on the fifteenth day of December, 1883, made an application for a change of venue, alleging as ground therefor “that the opposite party had an undue influence over the inhabitants of the county.” I think this application was properly overruled by the court. Under the first clause of section 3729, Revised Statutes, 1879, a change of venue is allowed when the judge is prejudiced; under the second, when the opposite party has an undue influence over the mind of the judge; under the third, when the inhabitants are prejudiced; under the fourth, when the opposite party has an undue influence over the inhabitants of the county. The plaintiff's application fell under the fourth clause and implied that a fair jury could not be obtained to try his case, on account of the defendant's influence over the inhabitants of the county. After having waived a jury trial and accepted the judge as trier of the facts, nothing was left for this application to operate upon. His waiver of record constituted an estoppel against any application under that clause. There is no connection between the facts stated and a fair trial which had to be by the judge. The application was, also, defective in failing to state that the applicant had just cause to believe that he could not have a fair trial on account of the causes alleged. R. S. 1879, sec. 3732.

The certificates of deposit, which the court refused to allow in the trial anew before it, are four in number, for $1,000 each, and resemble in all respects, except as to the time when payable, the following one of the number:

“MISSOURI VALLEY BANK,

Kansas City, Mo., Nov. 31, 1880.

No. 1977.

R. J. Alther has deposited in this bank one thousand dollars, payable to the order of himself, four months, on the return of this certificate, properly endorsed, without interest.

ROBERT J. ALTHER,

Cashier Missouri Valley Bank.”

Indorsed as follows:

“Pay John Lee, or order.

ROBT. J. ALTHER.”

It had been returned to Mr. Lee, after an indorsement by him, for collection. It is necessary to allude briefly to the transactions out of which these certificates arose. Mr. Robert J. Alther had been a member of the firm of R. J. Alther & Co., of St. Louis. While in said firm he became indebted to C. F. Aehle, of Boonville, who was a member of the banking firm under the name and style of Aehle, Dunnica & Co., which was succeeded by Aehle, Lee & Dunnica, of which the plaintiff was a member. This indebtedness was for money advanced and obligations incurred and discharged by Mr. Aehle to the use of R. J. Alther & Co. Upon request of Mr. Aehle, Mr. Alther, in December, 1876, forwarded to him the firm note of R. J. Alther & Co., in the sum of $6,000, payable one day after date. Upon dissolution of the firm of Aehle, Lee & Dunnica, this note turned up as a part of the assets thereof, and as such it came into the hands of Mr. Lee, who attended to the settlement of its affairs, and was looking around for the capital he had put into the concern. In the meantime, Mr. Alther withdrew from the firm of R. J. Alther & Co., after discovering that its liabilities were getting the advantage of its assets, and settled in Kansas City, becoming soon thereafter cashier of the Missouri Valley Bank. Rightfully assuming that such positions of responsibility are not usually bestowed upon insolvent or impecunious persons, Mr. Lee dispatched his attorney thither for the purpose of collecting his note. Mr. Alther was given to understand that he would have to settle the note or it would be enforced against him by suit. Thereupon Mr. Alther, protesting against the validity and...