Johnson v. Farmers Bank

• Decision Date: 17 December 1928
• Docket Number: No. 16405.,No. 16406.,16405.,16406.
• Citation: Johnson v. Farmers Bank, 11 S.W.2d 1090, 223 Mo. App. 513 (Mo. App. 1928)
• Court: Missouri Court of Appeals
• Parties: JOHN D. JOHNSON, RESPONDENT AND APPELLANT, v. FARMERS BANK OF CLARKSDALE IN LIQUIDATION, APPELLANT AND RESPONDENT.<SMALL><SUP>*</SUP></SMALL>

11 S.W.2d 1090

JOHN D. JOHNSON, RESPONDENT AND APPELLANT, v. FARMERS BANK OF CLARKSDALE IN LIQUIDATION, APPELLANT AND RESPONDENT.^*

No. 16405.

No. 16406.

Kansas City Court of Appeals. Missouri.

December 17, 1928.

Appeal from the Circuit Court of DeKalb County. — Hon. Guy B. Park, Judge.

AFFIRMED.

E.G. Robinson and E.J. Robinson for Johnson.

John Muster and John S. Boyer, for Bank.

FRANK, C.

This is an action against the Farmer's Bank of Clarksdale, in the hands of the Commissioner of Finance and in process of liquidation. The petition is in four counts. The first three counts are for the recovery of $3200 as a preferred claim. Each of these counts states a different reason why the claim should be allowed and preferred, but only one recovery is sought. The fourth count seeks a recovery of $11.49 as a general claim.

Judgment went for plaintiff on the third and fourth counts of the petition, and for defendant on the first and second. The judgment allows the $3200 as a preferred claim and the $11.49 as a general claim. Both parties appealed. No complaint is lodged against the petition.

The facts relative to the third count of the petition show that the bank ceased to function as such on April 23, 1927. On this date and for some time prior thereto, plaintiff had on deposit in said bank the sum of $3211.49. On April 20, 1927, plaintiff executed a check on defendant bank, for $3200, payable to Stewartsville State Bank. This check was presented to defendant bank for payment on April 22, 1927, at which time said bank was open, functioning as a bank, paying checks, receiving deposits, etc. At the time this check was presented for payment, plaintiff had on deposit in said bank the sum of $3211.49 and the bank at this time had on hand sufficient funds with which to pay said check, but refused to pay it.

Other necessary facts will be stated in connection with the points discussed in the opinion.

Appellant's first contention is that plaintiff placed his money on general deposit thus creating the relation of debtor and creditor between plaintiff and the bank.

It is not disputed that plaintiff's money was on deposit in the bank. In the light of the record, it is not necessary to determine whether such deposit was general or special, or the relation created between the parties by the making of such deposit. If it be conceded that the deposit was general, thus creating the relation of debtor and creditor, such relation was changed when the $3200 check was drawn by plaintiff against such deposit and presented to defendant bank for payment. At that time plaintiff had on deposit, and the bank had on hand and on deposit in the First National Bank of St. Joseph, sufficient money with which to pay the check. It was defendant bank's duty to pay the check. [O'Grady v. Stotts City Bank, 106 Mo. App. 366; Allen Grocery Co. v. Bank of Buchanan County, 192 Mo. App. 476; Waggoner v. Bank of Bernie, 281 S.W. 130; Claxton v. Cantley, 297 S.W. 975, 976.] It being defendant's duty to pay the check, after its refusal so to do, it held the amount of the check as trustee. [Bank of Poplar Bluff v. Millspaugh, 281 S.W. 733; Claxton v. Cantley, 297 S.W. 975.] The evidence shows that plaintiff gave the $3200 check to the Stewartsville State Bank to buy Liberty Bonds for him. It would be unjust to permit plaintiff to suffer loss, or permit the other creditors of the bank to profit by the wrongful act of the bank in refusing to pay plaintiff's check when presented.

Appellant also contends that plaintiff is not entitled to a preference because at the time plaintiff's check reached the bank for payment, the funds on hand were insufficient to pay the check, and at the time the bank closed, and at the time the commissioner took charge, only the sum of $1713.15 passed into the hands of the commissioner, therefore there was no money upon which a trust could operate.

Defendant is correct in his contention that plaintiff must show that the subject of the trust fund passed into the hands of the commissioner in charge of the bank, before he is entitled to a preference, but we do not agree with appellant's contention that only the sum of $1713.15 reached the hands of the commissioner.

The record shows that at the time plaintiff's check was presented for payment, and at the time the bank closed and passed into the hands of the commissioner, it had on hand the sum of $1713.15 in cash, and the sum of $3779.96 on deposit in a checking account in the First National Bank of St. Joseph. However, no part of this deposit ever reached the hands of the commissioner. Defendant bank, was indebted to the First National Bank in the sum of $45,000. Upon learning that defendant bank had closed its doors, the First National Bank credited this deposit of $3779.96 on the $45,000 indebtedness which defendant bank owed it, and charged said deposit off its books. This left the commissioner in charge with $1713.15 in actual cash together with the other assets of the bank which came to his hands at the time he took charge, which are shown to be as follows.

                              Assets
                                              (Rec. 38.)
                Bills receivable .......................................... $148,167.56
                Deposit First National Bank ...............................    3,851.45
                Cash & Cash Items .........................................    6,235.10
                Expense ...................................................    1,885.69
                Furniture & Fixtures ......................................      800.00
                Real Estate (Banking House) ...............................    4,500.00
                Other real estate .........................................    9,400.00
                Overdrafts ................................................      240.42
                School Bonds ..............................................      300.00
                Interest & interest paid out ...............................    1,957.45
                                                                             ___________
                      Total ................................................ $177,387.68
                                              Liabilities
                Capital stock .............................................  $ 10,000.00
                Surplus ...................................................     5,000.00
                Demand deposits ...........................................    78,835.32
                Time deposits .............................................    35,397.56
                Int. & Exchange ...........................................     3,154.80
                Bills payable .............................................    45,000.00
                                                                             ___________
                      Total ...............................................  $177,387.68
                

After the commissioner took charge, he collected notes, sold land, banking house and fixtures and...