In re State Bank of Brashear

• Decision Date: 11 January 1932
• Citation: 45 S.W.2d 117,226 Mo.App. 670
• Parties: IN RE LIQUIDATION OF STATE BANK OF BRASHEAR; GEORGE CHURCH, APPELLANT, v. S. L. CANTLEY, COMMISSION OF FINANCE, RESPONDENT
• Court: Kansas Court of Appeals

45 S.W.2d 117

226 Mo.App. 670

IN RE LIQUIDATION OF STATE BANK OF BRASHEAR; GEORGE CHURCH, APPELLANT, v. S. L. CANTLEY, COMMISSION OF FINANCE, RESPONDENT

Court of Appeals of Missouri, Kansas City

January 11, 1932

Appeal from the Circuit Court of Adair County.--Hon. Paul Higbee Judge.

AFFIRMED.

Judgment affirmed.

Rieger & Rieger for appellant.

No brief for respondent.

OPINION

TRIMBLE P. J.

This is an action to have plaintiff's claim of $ 500, established as a preference against the assets of the State Bank of Brashear now in the hands of the State Commissioner of Finance, said bank having closed its doors and turned over its assets to said commissioner on the 24th day of November 1930.

The commissioner in due course of time allowed plaintiff's claim against the bank as a common claim, and, thereupon, on July 27, 1931, plaintiff filed his petition in the circuit court praying for a preference.

A general demurrer was filed, based on the ground that the petition did not state facts sufficient to constitute a cause of action. This the court sustained and plaintiff, refusing to plead further, stood on his petition, and judgment was rendered in favor of the commissioner. Plaintiff has appealed.

After alleging the existence and business of the bank, its failure and the turning over of its assets to the commissioner, the petition goes on to charge that one, John L. Church, as administrator of the Estate of Louisa Church, deceased, had on deposit in said bank the sum of $ 500, that on the 21st of November, 1930, said administrator appeared at said bank "and requested of said bank, and then and there attempted to purchase, a banker's draft payable to plaintiff George Church, and attempted to withdraw from the moneys he had on demand deposit in said bank as administrator of the estate of Louisa Church, the sum of $ 500; that R. L. Probst, cashier of said bank, issued and delivered to John L. Church a cashier's check of that date, drawn on cashier's check account of the State Bank of Brashear, No. 2196, in the sum of $ 500 payable to plaintiff, George Church."

That thereupon John L. Church paid said bank for said cashier's check by drawing his check, as administrator, for $ 500 on the estate account, and said check was paid out of the funds of said estate, and said amount of $ 500 was charged against the account of said administrator and said check was stamped "paid" and returned to the administrator by said bank.

That the cashier's check was by John L. Church sent to plaintiff as his share of the estate of Louisa Church, and plaintiff cashed said cashier's check at a bank in Fort Collins, Colorado, and the cashier's check was by said bank forwarded in regular course of business, properly endorsed, to the Illinois Bank & Trust Company, and by it forwarded in the course of banking business to the Federal Reserve Bank of St. Louis, Missouri. The latter bank refused payment because of the assignment of the Brashear bank's assets to the finance commissioner (which occurred three days after the issuance of the cashier's check). The said cashier's check was sent back over its route to the Fort Collins bank, and plaintiff was compelled to repay to the latter bank the money he had obtained on said check.

That at the time said cashier's check No. 2196, was issued and delivered there was and continued to be more than sufficient funds in said cashier's checks account in the Brashear bank to pay said check and all other cashier's checks outstanding and payable from said cashier's checks account and likewise since the assignment to the commissioner there have been and are sufficient funds in said cashier's checks account in the hands of the commissioner to pay said cashier's check No. 2196 and all other cashier's checks drawn on said fund and now outstanding. That on said 21st of November, 1930 (when John L. Church, administrator presented his check and the cashier's check was delivered to him) "the said State Bank of Brashear was insolvent and in a failing condition, which condition the said bank and R. L. Probst, its cashier, well knew."

In considering a general demurrer, all facts properly pleaded in the petition, all inferences of fact that may fairly and reasonably be drawn therefrom, must be accepted as true. With this well established rule in view, is the plaintiff, under his petition, entitled to a preference? We have not been favored with a brief by the respondent.

When the administrator, John L. Church, asked for and attempted to buy a draft for $ 500, payable to George Church, he drew a check for said sum on his administrator account in said bank in payment therefor and said check was accepted by the Brashear bank and the administrator's account was charged therewith, or, in other words, said account was decreased by that amount on the bank's books. The cashier, however did not give the administrator a draft, but issued a cashier's check instead, and the cashier's checks account of the bank was increased $ 500, the amount credited thereto...