Int'l Bank v. German Bank

• Decision Date: 31 October 1879
• Citation: 71 Mo. 183
• Parties: THE INTERNATIONAL BANK, Appellant, v. THE GERMAN BANK.
• Court: Missouri Supreme Court

71 Mo. 183

THE INTERNATIONAL BANK, Appellant,

v.THE GERMAN BANK.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

F. & E. L. Gottschalk for appellant.

T. A. & H. M. Post for respondent Boecke.

1. To be estopped, Boecke must have intended to influence the conduct of the party invoking the estoppel. Dezel v. Odell; Devereux v. Burgwyn, 5 Ired. Eq. 355; Welland Canal Co. v. Hathaway, 8 Wend. 483; Howard v. Hudson, 2 El. & Bl. 1; Plumer v. Lord, 9 Allen 458; Audenried v. Betteley, 5 Allen 385; Pickard v. Sears, 6 Ad. & El. 474; Copeland v. Copeland, 28 Me. 539; Califf v. Hillhouse, 3 Minn. 315; Reynolds v. Lounsbury, 6 Hill 536; Big. Estop. 380; Turner v. Coffin, 12 Allen 401; Biddle v. Merc. Min. Co., 14 Cal. 368; Combs v. Cooper, 5 Minn. 254; McAfferty v. Conover, 7 Ohio St. 99.

2. He must have been guilty of such conduct as would make it fraudulent and against good conscience to assert his right. Welland Canal Co. v. Hathaway, supra; Devereux v. Burgwyn, supra; State v. Potter, 63 Mo. 225; Burleson v. Burleson, 28 Texas 415; Biddle v. Merc. Min. Co., supra; 1 Story Eq., § 391; Bragg v. Bost. & Wor. R. R, 9 Allen 62; Danforth v. Adams, 29 Conn. 111. There is a total failure of proof or pretense of proof of either fact. There can be, therefore, no estoppel in the case.

3. Boecke's blank endorsement cannot, of itself, work an estoppel. That gave the People's Savings Institution no indicia of title. ( a) His indorsement was the common mode of transfer adopted for any purpose for collection or otherwise. It was no guaranty of title. ( b) It pretended to give no other title to plaintiffs than the law merchant would clothe the holder of non-negotiable paper with, viz: a title subject to the equities of Boecke. Plaintiff cannot claim that it was misled by the indorsement, when its error was caused by its own ignorance of the statute affecting commercial paper. ( c) As a matter of law plaintiff cannot claim an estoppel created by the indorsement itself. Mech. Bk. v. R. R., 13 N. Y. 638; Big. Estop. 481; Clark v. Sisson, 22 N. Y. 312.

NAPTON, J.

The facts of this case are undisputed, and are fully stated in the printed brief of appellant, conceded to be correct by the counsel for respondent, and are, therefore, for convenience here copied:

It appears that the International Bank, plaintiff, as well as the German Bank, defendant, and the People's Savings Institution, of which John H. Fisse became the assignee, are all banking corporations; that on August 11th, 1874, Hermann Boecke, one of the interpleaders deposited with the German Bank the sum of $3,000, for which he received a certificate of deposit, as follows:

$3,000.

GERMAN BANK,

)

ST. LOUIS, MO., August 11th, 1874

)

Hermann Boecke has deposited in this bank $3,000, payable to the order of himself, six months after date with six per cent interest for the time stated, on the return of this certificate properly indorsed.

No. 10,301.

FRANK N. DEITZ, Cashier.

The following indorsement is written across the face in red ink: “This certificate is subject to any subsequent claim for collection, or any other fees arising out of disbursement of the legacy of which this money is part of proceeds.”

It further appears that afterward and before the maturity of said certificate, to-wit: on August 24th, 1874, the same was indorsed in blank by said Hermann Boecke and delivered to the People's Savings Institution for safe keeping and as collateral security for two loans made by said institution to said Boecke, for which he had executed and delivered his two promissory notes, one for $300 and one for $150; that no part of either of said notes have been paid, and that both of them are held by John H. Fisse, as such assignee of said People's Savings Institution. It further appears that afterward, and still before the maturity of said certificate of deposit, to-wit: in January, 1875, Edmund Wuerpel, then cashier of the People's Savings Institution, did, for and on behalf of said institution, obtain a loan of $5,000 from the plaintiff, the International Bank, to secure which loan he delivered to plaintiff sundry collaterals, amounting in the aggregate to $6,000, among which was this certificate of deposit, not yet due; that Wuerpel acted within the scope of his authority in making the loan, and that he represented to plaintiff at the time that the collaterals so offered were the property of the People's Savings Institution; that Wuerpel, as such cashier, executed a note for said $5,000, which became due on February 1st, 1875, a Monday, and that these collaterals were pinned to such note; that on January 30th, 1875, the Saturday before the Monday on which said note became due, in the afternoon, Wuerpel came to the teller of plaintiff, and said he wished to pay the loan of $5,000, and then gave his check, certified by him as cashier, on the People's Savings Institution, of which he was cashier, for $4,500, being the balance due on said loan, and in exchange the teller gave him the note with the collaterals attached; that next Monday, February 1st, 1875, in the morning, the teller of plaintiff was sent down to the People's Savings Institution but found the doors closed and that Wuerpel had absconded; that thereupon the plaintiff sued out a writ of replevin against said People's Savings Institution and against Fisse, its assignee, and by virtue of such writ obtained back said certificate of deposit; that said replevin suit was still pending, undecided, at the time of the trial of this case, (although since decided in favor of plaintiffs;) that Wuerpel, the cashier, absconded on January 31st, 1875, (Sunday;) that upon discovering this an assignment was made by the People's Savings Institution of its property and effects to John H. Fisse, on Monday, February 1st, 1875, and that he took possession thereof on that day, and found that Wuerpel, prior to his departure, had given his checks to various parties, to the amount of many thousand dollars in excess of the money on hand.

It was further shown that the International Bank, plaintiff, took said certificate in good faith, as one of the collaterals, and upon the representation of Wuerpel, that it was the property of the People's Savings Institution; that plaintiff had collected of the other collaterals only the sum of $2,040.26; that plaintiff had presented to said assignee, Fisse, said certified check of $4,500, for allowance, and that the same had been allowed, that said assignee had subsequently declared a dividend of two and one-half per cent, but that plaintiff had collected no part thereof. These are the facts and evidence.

The pleadings are: A petition filed by plaintiff, March 11th, 1875, against the German Bank, upon the certificate of deposit above set out, which petition is in the usual form. The answer of the German Bank admits the issue of said certificate, but sets out, that Hermann Boecke and said assignee, Fisse, both, also demand the amount due on said certificate; alleges its readiness to pay over the money or to bring it into court, and asks that said parties may be ordered to become parties to this suit and to interplead. Thereupon plaintiff moved to strike out from said answer all allegations showing that any other party made a claim to this certificate, which motion was overruled. Hermann Boecke filed also a petition in this case on April 20th, 1875, praying that he be permitted to interplead. This petition was granted and such leave given. Thereupon Boecke filed his interplea on May 15th, 1875. October 27th, 1875, John H. Fisse, assignee of the People's Savings Institution, by leave of court, also filed his interplea, claiming that defendant, the German Bank, should first pay the two notes made by Boecke. On January 5th, 1876, plaintiff filed a reply to the interplea of Boecke. On January 6th, 1876, the German Bank moved, and it was accordingly ordered, that it pay into the court the sum of $3,050, that it pay $40 to its attorneys, and that it be discharged.

On January 15th, 1876, the case went to trial before Judge John Wickham, under the pleadings and facts above stated. The plaintiff prayed for three instructions, all of which the court refused to give.

These instructions are as follows: 1. The court declares the law of this case to be, that, if the People's Savings Institution, by Edmund Wuerpel, its cashier, on the 30th day of January, fraudulently or by fraudulent representation obtained possession of the certificate of deposit, and the plaintiff afterward replevied said certificate out of the hands of the People's Savings Institution, then the People's Savings Institution acquired no right to, or interest in said certificate by reason of such possession, nor did plaintiff lose any right or interest therein, but he is entitled to the same rights that he would have had, if the certificate had remained in his possession continuously up to the time of bringing this suit.

2. The court declares the law of this case to be as follows: It being admitted by all the parties, that the certificate of deposit on which suit is brought was indorsed in blank by Boecke, the payee, and by him delivered before maturity to the People's Savings Institution, the effect of such indorsement and delivery was equivalent to an acknowledgment on the part of Boecke, that he had parted with the ownership of said certificate, and he is estopped from setting up any claim to, or interest in the same, as against the rights of the plaintiff, provided plaintiff took the certificate from the People's Savings Institution as collateral for a loan, before maturity, without any notice of Boecke's ownership or claim, but upon the representation of Wuerpel, the cashier, that the People's Savings Institution was the true and lawful owner of the certificate.

3. If the court, sitting as a jury, believe from the evidence that the certificate of deposit, on which this suit is brought, was indorsed by Hermann Boecke, the...