Martin v. The First National Bank, a Corp.

• Decision Date: 07 February 1921
• Citation: 227 S.W. 656,206 Mo.App. 629
• Parties: LYDIA MARTIN, Respondent, v. THE FIRST NATIONAL BANK, a Corporation, Appellant
• Court: Kansas Court of Appeals

227 S.W. 656

206 Mo.App. 629

LYDIA MARTIN, Respondent, v. THE FIRST NATIONAL BANK, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1921

Appeal from the Circuit Court of Callaway County.--Hon. David H Harris, Judge.

REVERSED.

Judgment reversed.

N. T Cave for respondent.

Baker & Baker for appellant.

OPINION

ARNOLD, J.

William Sulzer died in 1915, leaving a policy of life insurance payable to his son, John W. Sulzer.

The beneficiary under said policy of insurance collected the amount and deposited it to his own credit in the First National Bank at Fulton, Callaway county. After depositing said funds in the bank as aforesaid, John W. Sulzer called his mother, Mrs. Rosena Sulzer, and his sister, Mrs. Lydia Martin, into the bank and told them there that he was going to divide the balance of the proceeds of the insurance after deducting the amount of the costs and expenses, including the doctor's bill and funeral expenses, of his father, a sum of $ 1333.02, between himself, his mother and plaintiff herein, one-third each, or $ 444.34.

He directed that this amount ($ 444.34) be transferred from his account on the books of the defendant bank and deposited "for use of Mrs. Lydia Martin;" at the same time, and as a part of the same transaction, he executed and left with the defendant bank a writing, as follows:

"Fulton, Missouri, December 16, 1915.

"To the First National Bank, Fulton, Missouri.

"I have this day deposited for use of Mrs. Lydia Martin, the sum of $ 444.34 to be drawn out only on check signed by 'J. W. Sulzer and Lydia Martin,' also the same amount ($ 444.34) for use of Mrs. Wm. Sulzer to be drawn out only on check signed by 'J. W. Sulzer and Mrs. Wm. Sulzer.' In the event of my death before these funds are all used, I hereby direct that each party above named draw out balance of funds on check signed by said parties for balance due in each fund of their names, in other words these funds are not to be considered as part of my estate but must go to these parties.

(Signed) J. W. SUIZER."

"Sparrel McCall, Witness."

The account in question was carried on the books of defendant bank in the name of "Lydia Martin and J. W. Sulzer," and accordingly a book commonly called a "pass book" was delivered to plaintiff Lydia Martin. Thereafter plaintiff withdrew from said account the total sum of $ 144.34, at different times, on seven checks in various amounts, said checks having been signed, as stipulated in the instrument of writing aforesaid, by J. W. Sulzer and Lydia Martin. These checks were presented in evidence at the trial and marked "plaintiff's exhibits A, B, C, D, E, F, & G."

During the month of March, 1919, J. W. Sulzer presented three checks of $ 75, $ 100, and $ 125, respectively, drawn against said account and purporting to have been signed by J. W. Sulzer and Lydia Martin, payable to J. W. Sulzer and indorsed by him, and which exhausted the balance of said account.

The testimony which was not seriously disputed tends to show that the signatures "Lydia Martin" signed to these checks were not the genuine signatures of Lydia Martin but, instead, were forgeries.

In August, 1919, plaintiff went to the defendant Bank and talked with Mr. Harrison, the cashier, and ascertained from him that three checks had been drawn against the account by J. W. Sulzer. The cashier exhibited to her the said three checks (plaintiff's exhibits "H, I and J,") and stated that there were no funds to her credit in the bank. Plaintiff then filed suit in the circuit court of Callaway county to recover the amount of $ 300, and interest from August 1, 1919.

The petition is in three counts, the first of which is as follows: "Plaintiff states that the defendant is a banking corporation, duly and legally organized and incorporated under the laws of the United States, and is now and was at all times hereinafter mentioned doing general banking business in the City of Fulton, Callaway county, Missouri.

"Plaintiff for her cause of action states that on or about December 16, 1915, she deposited with the defendant, the sum of $ 444.34; and that on March 3, 1919, the defendant, without the authority, consent or knowledge of plaintiff, charged against said account, the sum of $ 75, no part of which was received by this plaintiff, and plaintiff states and alleges that said check drawn upon defendant bank, on March 3, 1919, and for $ 75 was a forgery and that the name of this plaintiff was forged to said check and that the defendant cashed the same without any right or authority or direction from this plaintiff.

"Plaintiff further states that she has often requested and demanded said money of the defendant, but the defendant failed, neglected and refused to pay said sum to the plaintiff, or to credit her account therewith.

"Wherefore plaintiff prays judgment against defendant in the sum of $ 75 with interest thereon at the rate of six per cent per annum from August 1, 1919, until said sum is paid and for her costs expended."

The second and third counts are the same with the exception of the amounts of the checks, being $ 100 and $ 125 respectively.

The answer is a general denial.

The judgment was for plaintiff in the sum of $ 300 and interest from August 1, 1919. From this verdict and judgment defendant appeals.

In the assignments of...