Lebrecht v. New State Bank

• Decision Date: 07 March 1921
• Docket Number: No. 13869.,13869.
• Parties: LEBRECHT v. NEW STATE BANK OF WOODWARD, OKL.
• Court: Missouri Court of Appeals

229 S.W. 285

LEBRECHT v. NEW STATE BANK OF WOODWARD, OKL.

No. 13869.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Rehearing Denied April 4, 1921.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by L. G. Lebrecht against the New State Bank of Woodward, Okl. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Milton Schwind, of Kansas City, for appellant.

McCune, Caldwell & Downing and H. M. Noble, all of Kansas City, for respondent.

BLAND, J.

This is an action to recover $2,300, claimed as a balance due on a deposit of $10,000 made by plaintiff in defendant bank. There was a verdict and judgment for defendant, and plaintiff has appealed.

This is the second appeal in the case. See Lebrecht v. New State Bank of Oklahoma, 199 Mo. App. 642, 205 S. W. 273. In the former appeal a judgment in favor of the defendant was reversed and the cause remanded, for the reason that there was no oral contract subsequent to the written contract, nor a consideration for the former pleaded. The evidence at the second trial was the same as that at the first, except in the particulars noted herein. As the facts are fully set forth in the former opinion, it is not necessary to repeat them here.

After the cause was reversed and remanded, defendant amended its answer, pleading that at the time of the signing of the written contract plaintiff claimed an equitable interest in 91 shares of defendant's bank stock, of which Murphy was the registered owner, and that the bank was in the custody and control of the bank commissioner because of Murphy's making fictitious loans and misappropriating the bank's funds. It pleads the written contract between plaintiff and the bank commissioner, and that said contract provided that said 91 shares of stock should be transferred and held by a trustee until the bank commissioner should be satisfied of the solvency of the bank and give his consent and approval to a permanent transfer of the stock; that plaintiff should deposit $10,000 in the bank for the purpose of placing the bank in a solvent condition, and that said sum, or any part thereof, might be withdrawn only on the approval of the bank commissioner; that in consideration of this agreement the bank commissioner consented to permit the bank to reopen without being dissolved and its affairs liquidated.

The answer further pleads that, while the bank was so in control of the bank commissioner, Murphy "wrongfully, unlawfully, and in disobedience" of the express direction of the bank commissioner issued a cashier's check for $2,300, which was subsequently negotiated to an innocent person, and became an obligation of the bank, by which act Murphy immediately became indebted to the bank in the sum of $2,300; that plaintiff requested the consent of the bank commissioner to a transfer of the stock, which was refused because, first, the commissioner was not satisfied of the solvency of the bank by reason of the liability of the bank for said $2,300 outstanding cashier's check, together with other items; second, Murphy, the registered holder of the stock, was indebted to the bank in the sum of $2,300, which amount was by the law of the state of Oklahoma a lien against the stock; third, the statutes of Oklahoma forbade the transfer of stock where the registered owner was indebted to the bank for any matured and unpaid obligation; that thereupon plaintiff agreed that if he failed to secure the surrender and cancellation of the $2,300 cashier's check, and the bank became obligated to pay the same, the amount should be deducted from the money plaintiff had on deposit in the bank under the written contract; that plaintiff agreed to the oral modification of the written contract in order to satisfy the bank commissioner of the solvency of the bank and obtain his consent to the transfer of the stock, and in order to release said stock from the lien of said indebtedness of $2,300 and to obtain possession of the stock "for the benefit of defendant," and in order to satisfy said indebtedness and allow the stock to be transferred as provided by law; that plaintiff failed to obtain the check for cancellation, failed to pay the check, and the bank, with the consent of the bank commissioner, paid it to its damage; that the bank commissioner then directed defendant to deduct the $2,300 from plaintiff's deposit according to his subsequent oral agreement with plaintiff; that the bank commissioner refused to permit said sum of money to be returned to plaintiff. By reason of the premises plaintiff is not entitled to recover said $2,300 sued for.

The statutes of Oklahoma introduced in evidence provide that whenever the bank commissioner shall become satisfied of the insolvency of any bank, he may, after due examination of its affairs, take possession of such bank and its assets and proceed to wind up its affairs and enforce the personal liability of its stockholders, officers, and directors. Section 302, Harris-Day Code. The statutes also provide that the bank so taken possession of may reopen when the commissioner is of the opinion that its stockholders have complied with the laws, that the bank's credit and funds are in all respects repaired, its reserve restored, and some other conditions met. Section 306, Harris-Day Code.

When the deputy commissioner made his preliminary examination of the bank he found a discrepancy in the account with the Security National Bank of Oklahoma City of about $6,300; accommodation note of Cozarth Grain Company of $4,000; two other accommodation notes of $2,500 each; notes of relatives of Murphy aggregating about $1,600, and notes, amounting to between $8,000 and $15,000, which were of questionable value. A more detailed examination was necessary to determine the exact condition. Meanwhile the bank commissioner directed Murphy to resign as cashier, ordered him not to draw any money from his personal account, it appearing that he had slightly in excess of $2,300 in that account, and directed persons in charge of the bank and persons working there to not pay any checks against this account. Murphy was present when this instruction was given. The deputy commissioner stated that this action was taken because "it took all of the money he had in his account in addition to the sale of this stock to clean up his shortage." While the...