Kuraner v. Columbia Nat. Bank of Kansas City

• Decision Date: 27 January 1936
• Parties: ALFRED KURANER, APPELLANT, v. COLUMBIA NATIONAL BANK OF KANSAS CITY, RESPONDENT
• Court: Kansas Court of Appeals

90 S.W.2d 465

230 Mo.App. 358

ALFRED KURANER, APPELLANT, v. COLUMBIA NATIONAL BANK OF KANSAS CITY, RESPONDENT

Court of Appeals of Missouri, Kansas City

January 27, 1936

Appeal from Circuit Court of Jackson County.--Hon. Daniel E. Bird Judge.

AFFIRMED.

Judgment affirmed.

McVey Randolph, Smithson & Garrity for appellant.

Henry S. Conrad, L. E. Durham, Hale Houts and Wright Conrad for respondent.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

This is a suit by the plaintiff as assignee of McVey, Freet & Randolph, formerly a firm of practicing lawyers in Kansas City, Missouri, against the Columbia National Bank, a banking corporation in Kansas City, Missouri, as defendant, to recover the sum of $ 580 alleged to have been wrongfully paid by said bank, on a check drawn by said law firm against the checking account or deposit kept by said firm with said bank, to another person and for another purpose than as originally directed by said check, by which payment said firm's funds in said bank were diverted to said firm's loss in the amount of said check.

The nature of plaintiff's claim and the grounds on which it is based and his theory of recovery fully appear from the second amended petition, upon which the cause was tried in the court below, which petition, omitting caption and signatures, is as follows:

"Comes now the plaintiff and for cause of action states:

"1. That the defendant, Columbia National Bank, is a corporation organized under the laws of the United States and doing a general banking business, in Kansas City, Missouri, including checking accounts, receiving deposits, and paying of checks thereon.

"2. Plaintiff states that E. H. McVey and C. A. Randolph were in the month of August, 1933, co-partners practicing law under the firm name 'McVey, Freet & Randolph' in Kansas City, Missouri; that said firm carried a checking account in the defendant, Columbia National Bank, and on or about August 19, 1933, issued check numbered 2426 to the order of the defendant, Columbia National Bank, in the sum of five hundred eighty ($ 580) dollars. Plaintiff further states that there was written on the check the following: 'to buy cashier's check (or draft) payable to Dr. McMillen.' Plaintiff further states that the said writing on said check was fraudulently altered by a stranger thereto by erasing the said writing and by writing in its place the following: 'Partial payment to Dr. H. B. McMillen.' Plaintiff states that said check was presented to said bank by a stranger thereto with the aforesaid alteration clearly appearing upon the face of said check; that notwithstanding such alteration the defendant, Columbia National Bank, issued its cashier's check to other persons and for other purposes than as originally directed thereon, namely, to the order of one L. C. Herwig, said funds being thereby diverted, to the loss of the said McVey, Freet & Randolph in the amount of the check, to-wit, five hundred eighty ($ 580) dollars, whereby the defendant, Columbia National Bank, is indebted to this plaintiff in the sum of five hundred eighty ($ 580) dollars with interest at six per cent from August 19, 1933.

"3. Plaintiff states that by duly executed assignment he is the owner of all right, title, and interest of said McVey, Freet & Randolph in and to the cause of action herein set forth.

"Wherefore, plaintiff prays judgment against the defendant in the sum of five hundred eighty ($ 580) dollars with interest at six per cent from August 19, 1933, together with costs."

The defendant answered by way of general denial.

Upon a trial had before the court and a jury, the court, at the close of plaintiff's evidence, granted to defendant an instruction in the nature of a demurrer peremptorily directing a verdict in favor of the defendant and marked such instruction, "Given," when the plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside; and the jury was discharged.

Thereafter, within due time, the plaintiff filed a motion to set aside the involuntary nonsuit taken by him and to grant a new trial. Upon the submission of such motion to the court, it was by the court overruled; and, from such action by the court in refusing to set aside the involuntary nonsuit and to grant plaintiff a new trial, the plaintiff prosecutes this appeal.

The facts as developed from the evidence in the record appear to be that McVey, Freet & Randolph were copartners in the practice of law in Kansas City, Missouri, during the year 1933 and during such year carried a checking and deposit account with the defendant, Columbia National Bank, and that, on August 19, 1933, the firm issued its checks against its account payable to the order of the defendant, Columbia National Bank, for the sum of $ 580, upon the upper margin of which check and just above the name of the payee appeared in writing the words, "to buy cashier's check (or draft) payable to Dr. McMillen." The check also bore in the upper margin thereof the written memorandum, "McMillen v. Nicholson Cashier's check." It appears that the check with the written memorandum thereon of "McMillen v. Nicholson Cashier's check" was prepared by one Mrs. Onsen, in the employ of the firm as bookkeeper, cashier, and stenographer, in her own handwriting and presented by her to C. A. Randolph, one of the members of the firm, for the signature of the firm thereto by him. At the time the same was so presented to him, he wrote the words thereon appearing in the upper margin above the name of the defendant bank as payee "to buy cashier's check (or draft) payable to Dr. McMillen" and signed the firm name thereto by him and delivered the check back to Mrs. Onsen to take to the bank and procure the cashier's check to be forwarded by her to Dr. McMillen. It would appear that the firm had represented Dr. McMillen in some matter of litigation he had with one Nicholson; that such litigation had been settled; and that there was due Dr. McMillen from the firm, from the proceeds of such settlement, the sum of $ 580, the amount of the check.

After the check left Mr. Randolph's hands, it appears that the words "to buy cashier's check (or draft) payable to Dr. McMillen," written on the upper margin thereof by Mr. Randolph at the time he affixed the signature of the firm thereto, were erased by Mrs. Onsen and the words "Partial Settlement to Dr. H. B. McMillen" written thereon by her at the same place where the words written by Mr. Randolph had appeared. The latter words, "Partial Settlement to Dr. H. B. McMillen," appear in the handwriting of Mrs. Onsen and were, presumably, written by her. The check was presented to the defendant bank by Mrs. Onsen on August 19, 1933; and the account of McVey, Freet & Randolph was charged by the bank with the amount thereof; and, upon the direction of Mrs. Onsen, a cashier's check was issued in payment thereof to one L. C. Herwig, which cashier's check was in due course, upon presentation duly endorsed by L. C. Herwig and his endorsees, paid to the endorsees of the said Herwig by the defendant bank.

It appears that Mrs. Onsen had been in the employ of the firm of McVey, Freet & Randolph for a number of years prior to the issuance of the check in question in the capacities of stenographer, clerk, bookkeeper, and cashier, and, in such capacities, had handled the banking business of the firm. She made deposits in the bank to the credit of the firm's account. She collected the cancelled checks and exercised general supervision over the firm's bank accounts. She purchased cashier's checks for the firm. Practically all checks were drawn by her and appeared in her handwriting except the signatures thereto, which were made and appeared in the handwriting of some member of the firm to whom she presented the same for signature. Notations on the margins of the checks were ordinarily made by her and appeared in her handwriting; and it was intended by the firm that the bank accept and honor such checks so drawn up by her and appearing in her handwriting, with or without notations thereon, when signed by the firm; and the bank had uniformly accepted all such checks so drawn up by her, appearing in her handwriting, when the signature of the firm was affixed thereto by some member thereof, with or without notations thereon. She had authority to make and frequently did make notations in the margins of the checks, even for her own benefit. She had authority to present to the bank for payment any check with the signature of the firm thereto which appeared to be drawn up by her and to be in her handwriting, with or without memorandums and notations thereon in her own handwriting or in the handwriting of other parties. She had authority in the presentation of a check to the bank to receive the cash thereon or to direct the issuance of a cashier's check or draft in payment thereof and the payee to whom the same should be issued or to give other directions with respect thereto. A great number of checks were thus handled for the firm by her each year. She handled the cash coming in for the firm, made up deposit slips, deposited the cash in the bank, and otherwise exercised control over such cash and had authority when occasion arose to purchase cashier's checks with it.

The petition charges that the check when presented to the defendant bank was presented by a stranger thereto with the erasure and the alterations thereon clearly appearing. However, it does not appear from the evidence in just what condition the check was with respect to any erasure or alteration appearing upon the margin thereof, if any, at the time of its presentation to the bank and the issuance of the cashier's check to L. C. Herwig, other than it may appear from the testimony of Mr. Randolph as...