Mason v. Commerce Trust Co.
| Decision Date | 07 February 1916 |
| Citation | 183 S.W. 707,192 Mo.App. 528 |
| Parties | O. R. MASON, Appellant, v. COMMERCE TRUST COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Clyde Wilcox, Judge.
AFFIRMED.
Judgment affirmed.
James Fairweather and Amos A. Knoop for appellant.
B. C Howard and Lynn Webb for respondent.
--This is an action, originating in a justice court, to recover money paid under mistake. The jury found for plaintiff and the court sustained defendant's motion for new trial. The abstract of the record merely recites that the motion for new trial was sustained and does not copy the order made. As the abstract contains no reason for the granting of a new trial we presume the court omitted to give any reason or reasons therefor. However, if the motion for new trial contains any sufficient reason or reasons shown by the record for the granting of a new trial, the appellate court will affirm the ruling. [Benjamin v. Metropolitan Street Railway Company, 245 Mo. 598, l. c. 610; State ex rel. v. Thomas, 245 Mo. 65, 149 S.W. 318.]
The money sought to be recovered was the amount of two semi-annual interest coupons of $ 43.75 each, which plaintiff paid to defendant thinking they were the interest coupons belonging to debts secured by two incumbrances on two lots respectively, which he had bought subject thereto. It afterwards turned out that the coupons he paid were not on his property but on the property of another.
The coupons which were on plaintiff's property, and which he was intending to pay, were for $ 43.75, the same amount as the others, but were both signed by Ethel Spence and both made payable to the Commerce Trust Company, or bearer. Of the two he paid, however, one was signed by Ethel Spence and the other by Bernard J. Smith. One was payable to the Commerce Trust Company, or bearer, and was endorsed by the First State Bank of Kansas City, Kansas. The other was payable to bearer at the Security State Bank of Rosedale, Kansas.
Some time prior to the payment of the coupons, the defendant received them for collection from the First State Bank of Kansas City, Kansas, with a pencil memorandum thereon to "Notify O. R. Mason, 129 Olive." Defendant immediately turned them over to its "City Collection Department." This department, pursuant to the direction contained in the memorandum on the coupons, proceeded to "notify O. R. Mason, 129 Olive" by sending written notices to plaintiff, which on their face showed they came from defendant's "City Collection Department," that the coupon would be due November 1, 1912.
Plaintiff presented the two notices at the "City Collection" window of defendant's banking house and paid and received the two coupons. Afterwards, upon receiving notice from Mr. Sherard, the holder of the right coupons, to pay them, plaintiff discovered his error in paying the other two and went to defendant about it. Defendant, however, had by this time accounted to the Kansas bank and so informed plaintiff. The latter then went to the Kansas bank and seems to have obtained a promise from one, Simpson, who seems to have owned the two coupons which plaintiff unintentionally paid, that he would refund the money, but, as he failed to do so, plaintiff brought this suit against defendant to recover it.
There is no question but that the defendant bank was not the owner of the coupons but was merely an agent in collecting them and that it has paid the money collected over to the Kansas bank, and did so in good faith before it had any notice of there being any mistake. This, however, would make no difference if the mistake were mutual, that is, if the defendant bank had made a mistake as well as the plaintiff; and this would be true regardless of plaintiff's lack of care or prudence in failing to see that they were not the coupons he was required to pay. [Koontz v. Central National Bank, 51 Mo. 275.] But, so far as anything the defendant bank itself did, it made no mistake, since it merely obeyed directions in notifying plaintiff and had no means of ascertaining that the coupons were not the ones plaintiff was obligated to pay. The mistake of one party to a contract will not entitle him to relief, in an action at law, unless it appears that his mistake was induced by the fraud, or misconduct amounting to fraud, on the part of the one who did not make the mistake. [Miller v. Missouri Fire Brick Co., 139 Mo.App. 25, l. c. 34; Norton v. Bohart, 105 Mo. 615, l. c. 630; McCormack v. Lynch, 69 Mo.App. 524; Benn v. Pritchett, 163 Mo. 560, 63 S.W. 1103.] There is no claim that the defendant bank used fraud or persuasion to induce plaintiff to pay said coupons. In fact, such is expressly disclaimed.
But plaintiff says the Kansas bank, or whoever owned the two coupons which plaintiff erroneously paid, made a mistake in placing thereon the direction to ...
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