Mead v. South Side Bank

• Decision Date: 04 March 1929
• Docket Number: No. 16484.,16484.
• Citation: 14 S.W.2d 664
• Parties: MEAD v. SOUTH SIDE BANK.
• Court: Missouri Court of Appeals

14 S.W.2d 664

MEAD v. SOUTH SIDE BANK.

No. 16484.

Kansas City Court of Appeals. Missouri.

March 4, 1929.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

"Not to be officially published."

Action by C. F. Mead against the South Side Bank. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Fred A. Boxley, of Kansas City, for appellant.

Battle McCardle, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover the amount of three checks payable to plaintiff, whose name is alleged to have been forged by an employee of plaintiff and cashed by defendant bank.

The facts are that plaintiff was the owner of an apartment building between Thirty-Eight and Thirty-Ninth streets on Warwick boulevard in Kansas City, Mo. Plaintiff spent part of his time in California and for about seven years had employed a negro man named E. Graves who looked after the apartments, rented apartments to tenants, received the rents, sometimes in cash but chiefly in checks, made repairs, paid monthly bills accruing from the operation of the apartments, paid for repairs, and in one instance at least signed a lease to a tenant in plaintiff's name, and acted as janitor for the apartments. Graves was directed to deposit the rentals to plaintiff's credit in the Fidelity National Bank in Kansas City, Mo., and this he did by indorsing the checks in plaintiff's name "by E. Graves."

On or about March 8, 1925, Graves cashed a check at defendant bank in the sum of $145, drawn by Harrington, Howard & Ash upon the Commerce Trust Company, payable to plaintiff; defendant presented same to the Commerce Trust Company and received the money therefor. On April 3, 1925, Graves cashed a check at defendant bank executed by one Geo. F. Macgregor, payable to plaintiff in the sum of $100; defendant bank received the same amount from the Commerce Trust Company. On April 6, 1925, Graves cashed at defendant bank another check drawn on the Pioneer Trust Company in the sum of $107.50, payable to plaintiff, and executed by Mrs. Walton Holmes, Jr., Graves indorsing same in the name of plaintiff; defendant bank secured the money on this check from the Pioneer Trust Company. About the time of the cashing of the checks as aforesaid, or shortly after, Graves absconded, and plaintiff brings this suit to recover the money thus obtained by him.

The petition is in nine counts, but involves only the transactions in respect to the three checks above indicated. The first count alleges the execution of the Harrington, Howard & Ash check, and states the same came into possession of defendant with the unauthorized and forged indorsement of plaintiff's name thereon, without his authority or consent; that defendant unlawfully converted same to its own use and presented said check to the Commerce Trust Company and received the sum of $145 thereon. Judgment is asked for $145 and interest. The second count refers to the same check, and alleges that defendant unlawfully converted said check to its own use and received the cash thereon. The third count refers to the same check, and alleges defendant bank converted the proceeds of said check to its own use.

Counts 4, 5, and 6 refer to the Macgregor check for $100, and make similar charges in respect thereto as contained in counts 1, 2, and 3 of the petition. In counts 7, 8, and 9, the check executed by Mrs. Walton Holmes, Jr., is treated and pleaded in the same manner as the other two checks forming the basis of this suit. In each instance judgment is asked for the face of the check and interest. The answer admits the corporate status of defendant bank under the laws of Missouri, and such admission is followed by a general denial. As affirmative defense, defendant states, as to counts 1, 2, and 3, that it received the check for $145, described in the petition, with the indorsement of C. F. Mead, payee, thereon, and the further indorsement of E. Graves; states that upon the presentation of the check it paid the sum of $145 to E. Graves for the use and benefit of C. F. Mead, plaintiff; that said E. Graves, for a long time, had been in the employ of plaintiff, engaged in the operation of rental properties for plaintiff and collecting rents from tenants for plaintiff; that plaintiff had invested said Graves with the authority to collect rents from his tenants and to purchase supplies for his properties, and to otherwise act for and in behalf of plaintiff during his absence from Kansas City, Mo., and at other times; that defendant had notice of said Graves' real or apparent authority as such agent, and that defendant and others, acting and relying upon the apparent authority in said E. Graves, had cashed checks indorsed by E. Graves for and in behalf of plaintiff and had transacted business with him as the agent of plaintiff with apparent authority to represent plaintiff; that defendant had no notice of any rescission of said authority, and for a long period of time plaintiff had acquiesced in the acts of E. Graves as agent; that, under all the facts and circumstances, plaintiff is estopped to deny the agency of Graves and his authority to cash checks issued to plaintiff and to sign plaintiff's name thereto. The plea in defense as to the other two checks in issue is the same as stated above.

The reply denies that defendant paid any cash to E. Graves, and states defendant paid the respective amounts of the checks to Graves for the use and benefit of plaintiff, and avers that, knowing said checks were the property of plaintiff, defendant credited them to the individual account of Graves in said bank. Plaintiff admits and avers that, prior to the conversion of said checks, Graves had been in the employ of plaintiff and had authority, in plaintiff's absence, to receive from plaintiff's tenants checks for rent for which the checks in controversy were given, and that Graves had authority to deposit them in the Fidelity National Bank & Trust Company, that he had authority to purchase supplies, keep the properties in repair, and not otherwise; denies plaintiff ever gave authority to Graves to indorse checks made payable to plaintiff otherwise than for the purpose of depositing them to plaintiff's credit; denies that plaintiff knew of the cashing of checks, that, if any such practice existed, it was unknown to plaintiff and against his consent; denies that defendant relied upon any such apparent authority, or that there was authority for Graves to cash checks; denies that plaintiff ever rescinded any authority which he had given to deposit rent checks as aforesaid until Graves absconded about April, 1925; denies plaintiff is estopped to deny that Graves was plaintiff's agent to cash checks or to sign or indorse plaintiff's name, or receive the money therefor.

After the jury was impaneled, plaintiff asked and was granted leave to amend by interlineation so there would be a more specific denial of agency, with leave to verify. This permission was granted, and defendant sought an order of court requiring plaintiff to elect, which was denied. The interlineation by plaintiff was made just preceding the prayer in the reply, as follows: "And denies that he had invested said Graves with power to act as, for and in behalf of plaintiff, during his absence from Kansas City." Defendant objected to the introduction of any evidence, for the reason the petition fails to state a cause of action, but this objection was overruled. Defendant's renewed motion to require plaintiff to elect also was overruled.

At the close of all the evidence, plaintiff dismissed as to counts 2, 3, 5, 6, 8, and 9, and stood on counts 1, 4, and 7, thus going to trial on the charge of conversion of the checks. At the close of the evidence, defendant asked and the court overruled an instruction in the nature of a demurrer. The cause was tried to a jury, resulting in a verdict for plaintiff on count 1, for $145.00, on count 4 for $100, and on count 7...