Liberty Nat. Bank of Kansas City v. Vanderslice-Lynds Co.

• Citation: 95 S.W.2d 324,338 Mo. 932
• Decision Date: 03 April 1936
• Docket Number: 33036,33037
• Parties: The Liberty National Bank of Kansas City v. Vanderslice-Lynds Company, Appellant
• Court: United States State Supreme Court of Missouri

95 S.W.2d 324

338 Mo. 932

The Liberty National Bank of Kansas City v. Vanderslice-Lynds Company, Appellant

Nos. 33036, 33037

Supreme Court of Missouri

April 3, 1936

Motion for Rehearing Withdrawn April 3, 1936.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Judgment on counterclaim affirmed and plaintiff's suit on check reversed and remanded with direction to enter verdict for plaintiff.

Cooper Neel, Kemp & Sutherland and Charles M. Howell for The Liberty National Bank of Kansas City.

(1) The check was deposited and full credit given therefor. It was treated as cash, similarly as though it had been paid in cash at the paying teller's window and the cash itself had been deposited at the receiving teller's window. The endorsement thereon was general and unrestricted. The entire proceeds (less a few dollars) of the credit thus created were drawn out on checks of the depositor. Such was the established mode, method and custom of business between the bank and the depositor. The limiting conditions of the deposit slip were for the benefit of the bank and were waived by it by such credit and payments. Without more, the bank took title to and became the owner of the check. No issue of fact remained at the conclusion of the case. The only issue was an issue of law, viz., under the undisputed facts, did the bank take title to the check and was it the owner thereof. Under settled law, generally, and controlling authorities of this court, this must be answered in the affirmative. It follows that the jury should have been peremptorily instructed to find for plaintiff. It likewise follows that the modification of plaintiff's instructions 1 and 3 and the giving of all of defendant's instructions was erroneous. Nat. City Bank v. Macon Creamery Co., 46 S.W.2d 127; Jefferson Bank v. Merchants Refrigerating Co., 236 Mo. 407; Foristel v. Security Nat Bank, 320 Mo. 442, 7 S.W.2d 997; Nomland v. First Natl. Bank of Kansas City, 64 F.2d 402; Security Natl. Bank v. Old Natl. Bank, 241 F. 1; May v. Bank of Hughesville, 291 S.W. 170; Cairo Natl. Bank v Blanton Co., 287 S.W. 839; Cottondale Planting Co. v. Diehlstadt Bank, 286 S.W. 425; Bank v. Gordon, 250 S.W. 648; Old Natl. Bank of Spokane v. Gibson, 6 A. L. R. 259; Fourth Natl. Bank v. Bragg, 11 A. L. R. 1070; Dymock v. Bank, 67 Mo.App. 97; Gate City B. & L. Assn. v. Natl. Bank of Commerce, 126 Mo. 82; Secs. 2630, 2813, R. S. 1929; Fisher v. Bagnall, 194 Mo.App. 581; Famous Shoe & Clothing Co. v. Crosswhite, 124 Mo. 34, 26 L. R. A. 568; 2 Morse on Banks & Banking (6 Ed.), p. 1016; 5 R. C. L., p. 534; Farmers' Exchange Bank of Marshfield v. Farm & Home Savs. & L. Assn., 61 S.W.2d 720. (2) Plaintiff's right of recovery against the defendant is unaffected by the repurchase (if so) of the Vanderslice-Lynds check. Carter v. Butler, 264 Mo. 325; Dugan v. United States, 3 Wheat. 172; McMurray v. McMurray, 258 Mo. 417; Miller v. Chinn, 195 S.W. 552. (3) There was no testimony to sustain the modification by the court of plaintiff's requested Instructions 1 and 3, nor the giving of defendant's instruction A and E. (4) Plaintiff is entitled to have the case reversed and remanded with directions to enter judgment for plaintiff. American Sash & Door Co. v. Commerce Trust Co., 56 S.W.2d 1034; Monmouth College v. Dockery, 241 Mo. 561; Knisely v. Leathe, 178 S.W. 461; Famous Shoe & Clothing Co. v. Crosswhite, 124 Mo. 34, 26 L. R. A. 568.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, John H. Lathrop, Henry W. Fox and Claude A. Ferguson for Vanderslice-Lynds Company.

(1) Plaintiff cannot here complain of alleged error of the trial court in refusing to give plaintiff's peremptory instruction to the jury to find in its favor on its petition, at the close of all the evidence. Plaintiff did not stand on its request for a peremptory instruction. It did not dismiss its case when its peremptory instruction was refused but it thereupon requested instructions submitting the case to the jury to find the facts. The case was then argued by plaintiff's counsel and submitted to the jury which found against the plaintiff. Under such circumstances plaintiff waived its right to contend in this court that the trial court erred in refusing its peremptory instruction. Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307; Emerson-Brantingham v. England, 186 S.W. 1185; Union Station Bank v. Wangler, 254 S.W. 741; La Monte Bank v. Crawford, 27 S.W.2d 764; International Harvester Co. v. McLaughlin, 227 Mo.App. 221, 52 S.W.2d 228. (2) Under the evidence the credibility of plaintiff's evidence, questions whether defendant's check was actually credited on plaintiff's ledger sheet and if so the character of the credit; whether under the evidence any checks of Davidson were paid because of the deposit of defendant's check; whether or not payment of defendant's check was refused by the Commerce; whether payment of that check had been made; whether the plaintiff intended to become the owner of the check or whether it intended under all the evidence in this case to accept the check merely as the agent of Davidson and at his risk so as to be subject to the defense of fraud on his part were all questions for the jury to determine and the trial court correctly submitted these issues among others to the jury. (a) Documentary evidence not conclusive. Shaw v. Am. Ins. Union, 33 S.W.2d 1052; Levels v. Railroad Co., 196 Mo. 606, 94 S.W. 275. (b) Credibility of evidence for jury. Lafferty v. Kansas City Cas. Co., 287 Mo. 555, 229 S.W. 753. (c) Where different inferences may be drawn case for jury. Equitable Life v. Natl. Bank of Commerce, 197 S.W. 117. (d) Under the evidence this case for jury. Foristel v. Sec. Natl. Bank, 320 Mo. 436, 7 S.W.2d 998; Natl. City Bank v. Macon Creamery, 329 Mo. 639, 46 S.W.2d 127; Midwest Natl. Bank v. Parker Corn Co., 211 Mo.App. 413, 245 S.W. 217; First Natl. Bank of Paragould v. Hogue, 224 Mo.App. 503, 28 S.W.2d 117; Brigance v. Bank of Cooter, 200 S.W. 668; Commerce Trust Co. v. Schuler, 27 S.W.2d 492. (e) Where plaintiff gives instruction and defendant's instruction is converse, plaintiff cannot complain it is improper. Everhart v. Bryson, 244 Mo. 507, 149 S.W. 310; Huss v. Heydt Baking Co., 210 Mo. 44, 108 S.W. 65. (f) The check sued on was once paid and discharged, at least it was a jury question. Natl. Bank of Commerce v. Mechanics Am. Natl. Bank, 148 Mo.App. 1; Maget v. Bartlett Brothers, 41 S.W.2d 849.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Plaintiff brought suit on a check for $ 18,296.42 issued by defendant. Defendant in its answer, among other defenses, set up a counterclaim against plaintiff. The jury found for defendant on plaintiff's petition and for plaintiff, by direction of the court, on defendant's counterclaim. Motions for new trial were filed and overruled and both parties appealed. Plaintiff's appeal is number 33,037 and defendant's appeal is number 33,036. The separate appeals were consolidated and joint abstract filed.

Plaintiff's petition is conventional. Defendant's answer, except the counterclaim, is a (1) general denial; (2) denial that plaintiff paid anything to the payee named in the check; (3) that the check was obtained from defendant by fraud and was without consideration, and that plaintiff was not a holder in due course; (4) and that the check was paid. Defendant's counterclaim is pleaded as follows:

"Defendant states that on November 17, 1928, Davidson Mill & Elevator Company by J. N. Davidson, made, executed and delivered to H Lichtig & Company for value a check drawn on Liberty National Bank, plaintiff herein, for the sum of $ 18,377.42, payable to the order of H. Lichtig & Company, and said payee on the same day duly endorsed and delivered said check for value received to this defendant before maturity thereof, and this defendant on the same day deposited said check in Commerce Trust Company and said check was duly presented to plaintiff for payment within a reasonable time, to-wit, on November 19, 1928, and Commerce Trust Company received credit against plaintiff for the amount of said check in the clearing house and the Federal Reserve Bank of which plaintiff and Commerce Trust Company were members, and said plaintiff retained said check for such length of time and did or omitted to do such acts in reference thereto that plaintiff was obligated to pay and in fact had paid said check to Commerce Trust Company, for this defendant, and Commerce Trust Company was not obligated to take back or accept a return of said check which it has presented; that thereafter and without defendant's knowledge, the Commerce Trust Company at the instance and request of plaintiff entered into an agreement with plaintiff wherein and whereby Commerce Trust Company paid back to plaintiff the amount said Commerce Trust Company had received or was bound to receive in payment of said check of Davidson Mill & Elevator Company, and said Commerce Trust Company wrongfully caused or induced defendant to furnish to Commerce Trust Company the funds with which to pay back said amount to plaintiff without divulging the facts to defendant, and plaintiff did receive, accept and retain and still retains wrongfully said sum of $ 18,377.42, and is unjustly enriched in said amount, which said sum is justly due defendant, but which plaintiff has failed and neglected to pay defendant."

The counterclaim, as stated by defendant, is for money had and received, and judgment is sought against plaintiff for $ 18,377.42, with interest. Plaintiff's reply to the answer and counterclaim is a general denial.

Defendant is a corporation and deals in grain in Kansas City. J. N Davidson, operating under the name of Davidson Mill & Elevator Company, was also a grain dealer. Henry Lichtig...