Meredith v. Meredith

• Decision Date: 04 March 1941
• Citation: 148 S.W.2d 611,235 Mo.App. 1010
• Parties: ANNA MEREDITH, PLAINTIFF, RESPONDENT, v. CHARLES A. MEREDITH, DEFENDANT, APPELLANT; MISSISSIPPI VALLEY TRUST COMPANY, A CORPORATION, DEFENDANT, AND MERCANTILE-COMMERCE BANK & TRUST COMPANY, A CORPORATION, DEFENDANT, RESPONDENT
• Court: Missouri Court of Appeals

148 S.W.2d 611

235 Mo.App. 1010

ANNA MEREDITH, PLAINTIFF, RESPONDENT, v. CHARLES A. MEREDITH, DEFENDANT, APPELLANT; MISSISSIPPI VALLEY TRUST COMPANY, A CORPORATION, DEFENDANT, AND MERCANTILE-COMMERCE BANK & TRUST COMPANY, A CORPORATION, DEFENDANT, RESPONDENT

Court of Appeals of Missouri, St. Louis

March 4, 1941

Appellant's Motion to Modify Opinion Overruled March 21 1941.

Opinion Modified by Court of Its Own Motion.

Motion of Respondent Mercantile-Commerce Bank & Trust Co. for Rehearing Overruled.

Appeal from Circuit Court of the City of St. Louis.--Hon. Harry F Russell, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Thompson, Mitchell, Thompson & Young and William R. Bascom for respondent Mercantile-Commerce Bank & Trust Company.

(1) The party enjoined is entitled to damages on an injunction bond after dissolution of the injunction only in instances where the injunction was wrongfully issued or thereafter wrongfully continued. Secs. 1507, 1509, R. S. Mo. 1929, Mo. Ann. Stat. 1929, pp. 1663, 1665; Barrett v. Stoddard County, 183 S.W. 644, 648; Pierce v. Campbell, 217 Mo.App. 179, 274 S.W. 875, 876; Hecht Bros. Clothing Co. v. Walker, 279 S.W. 1059, 1061; C. H. Albers Commission Co. v. Spencer, 236 Mo. 608, 139 S.W. 321, 326; Dickinson v. Springer, 246 N.Y. 203, 158 N.E. 74, 77; 32 C. J. 435, sec. 746. (2) The circuit court has jurisdiction to terminate liability on an injunction bond where the issuance of a temporary injunction was rightful, but its continuance is no longer necessary. Pierce v. Campbell, supra; Hecht Bros. Clothing Co. v. Walker, supra; Davidson v. Hough, 165 Mo. 561, 65 S.W. 731, 734. (3) Where an appeal is taken on the record proper, this court may examine the sufficiency of a respondent's pleadings seeking affirmative relief. Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846; Granite Bituminous Paving Co. v. Stange, 8 S.W.2d 1087. (4) The relationship between a bank conducting a safe deposit business and a renter of a safe deposit box is that of bailor-bailee. Kramer v. Grand National Bank of St. Louis, 336 Mo. 1022, 81 S.W.2d 961; State ex rel. Rabiste v. Southern, 300 Mo. 417, 254 S.W. 166. A bailee when confronted with a claim by a third person that the subject of the bailment was impressed with a trust in his favor and that the res was about to be misappropriated, and by a claim of the bailor for possession of the property, reasonably could have suffered injury from these conflicting demands. Truesdell v. Bourke, 29 A.D. 95, 51 N.Y.S. 409, Aff'd Mem. 161 N.Y. 634, 57 N.E. 1127; 2 Scott on Trusts, sec. 292.3, p. 1618; Mohr v. Langan, 162 Mo. 74, 63 S.W. 409; Nanson v. Jacob, 93 Mo. 331, 6 S.W. 246; 43 A. L. R. 170; Schrowang v. Von Hoffmann Press, 75 S.W.2d 649; State ex rel. Schrowang v. Hostetter, 337 Mo. 522, 85 S.W.2d 417; Oehmen v. Portmann, 153 Mo.App. 240, 133 S.W. 104; W. A. Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524, 528; Geitz v. Blank, 108 S.W.2d 1066; Supreme Council of Legion of Honor of Missouri v. Palmer, 107 Mo.App. 157, 80 S.W. 699; Sovereign Camp Woodmen of the World v. Wood, 100 Mo.App. 655, 75 S.W. 377; Concordia Fire Ins. Co. v. Alexander, 50 S.W.2d 687. A bailee is entitled to maintain a bill of interpleader under circumstances otherwise appropriate for the remedy. Lavelle v. Belliu, 121 Mo.App. 442, 97 S.W. 200; Supreme Council of Legion of Honor of Missouri v. Palmer, supra; Mercantile Safe-Deposit Co. v. Dimon, 72 Hun. 638, 25 N.Y.S. 38; 6 C. J. 1141, sec. 94; 33 C. J. 441, sec. 25; Hyer v. Baker (Mo.), 130 S.W.2d 516; Atkinson v. Carter, 101 Mo.App. 477, 74 S.W. 502; Oldham v. McKay, 138 S.W.2d 735; 33 C. J. 420, sec. 2; Tucker v. St. Louis Life Insurance Co., 63 Mo. 588; Sec. 1071, R. S. Mo. 1929, Mo. Ann. Stat. 1929, p. 1372; Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237, 76 S.W.2d 388; Fulton v. Fisher, 239 Mo. 116, 143 S.W. 438; Sec. 849, R. S. Mo. 1929, Mo. Ann. Stat. 1929, p. 1119. A party maintaining interpleader is entitled to hold the property controverted subject to an order of the court and upon issuance of that order to deliver the property into court and thereby be relieved of all liability and vexation for so doing. Davidson v. Hough, supra; McGinn v. Interstate Nat. Bank, 178 Mo.App. 347, 166 S.W. 345; Lavelle v. Belliu, supra; Supreme Council of Legion of Honor of Missouri v. Palmer, supra; 33 C. J. 447, sec. 29, p. 452, sec. 34; Mercantile Safe-Deposit Co. v. Dimon, supra. Where a party is entitled to maintain interpleader the court has jurisdiction to determine to which of the claimants belongs the right of possession and ownership in the property controverted. Hyer v. Baker, supra; Oldham v. McKay, supra; Stewart v. Kane, 111 S.W.2d 971; Farmers' & Laborers' Co-op. Ins. Ass'n of Audrain County v. Bank of Centralia, 227 Mo.App. 1068, 56 S.W.2d 606; Duke, Lennon & Co. v. Duke & Woods, 93 Mo.App. 244.

E. McD. Stevens and S. Mayner Wallace for appellant, Charles A. Meredith.

Neither under the pleadings, nor anywhere in the law, was there authority in the court below to "cancel" the injunction bond or to release the Mercantile, after dissolution of the injunction, from its liability under the said bond. In other words, the court was without jurisdiction to make any such adjudication and its attempt so to do was contrary to the statutes providing for injunction bonds and liability thereunder. R. S. Mo. 1929, secs. 1505-1509.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.

--This is an appeal by Charles A. Meredith, one of the defendants below, from a judgment of the trial court dismissing plaintiff's petition, sustaining the cross-bill of the defendant Mercantile-Commerce Bank & Trust Company, and finding that appellant Charles A. Meredith was entitled to the possession and ownership of certain securities interpleaded by said cross-bill. The case is here for review upon the record proper.

The suit was originally filed on December 13, 1938, by respondent Anna Meredith against appellant Charles A. Meredith, respondent Mercantile-Commerce Bank & Trust Company, and Mississippi Valley Trust Company. To this petition defendant Mercantile-Commerce Bank & Trust Company filed its answer and cross-bill on January 6, 1939. Thereafter said petition and an amended petition were adjudged insufficient upon demurrers of defendants, Charles A. Meredith and Mississippi Valley Trust Company, and on May 11, 1939, plaintiff filed her second amended petition, which is the petition upon which the case was tried.

The said petition alleged that prior to December 24, 1936, defendant Charles A. Meredith proposed marriage to plaintiff and requested that they enter into an antenuptial agreement; that he stated he was morally bound to preserve and bequeath to his son, Russell Meredith, the sum of $ 5,000, and further falsely and fraudulently stated that he owned no real and personal property except certain real estate described in said petition, subject to a $ 6000 deed of trust; bonds of the United Railways Company of the par value of $ 6000; and a $ 5000 first mortgage bond of the Exchange Building; also a bungalow at 5318 Potomac Street, subject to a $ 3000 mortgage; a small farm in St. Charles County; interest in some land in Woburn, Massachusetts; and an income of $ 400 per month earned as medical examiner for the Metropolitan Life Insurance Company, and income and earnings from the operation of a hennery in St. Louis County.

It was then alleged that in reliance upon said representations plaintiff executed a marriage contract, partly in writing and in part oral, in which it was provided that defendant Charles A. Meredith renounced any right to plaintiff's property, and agreed to convey the real estate described in the petition to himself and plaintiff as tenants by the entirety; that it was further provided that plaintiff and said defendant would then execute a warranty deed to said property in favor of plaintiff's children, to be held in escrow until the death of both plaintiff and defendant, and then to be delivered to said children; that plaintiff and defendant would open a joint bank account and deposit therein all the income and earnings of each, to become the property of the survivor upon the death of either, and that defendant was to convert into cash so much of the personal property described in said petition as should be necessary to discharge the encumbrance on the real estate described in the petition and to hold the personal property in trust for that purpose.

The petition then alleged that in consideration of the said contract plaintiff and defendant were married December 24, 1936; that defendant conveyed said real estate as provided in said contract, and that they both executed the warranty deed to plaintiff's children, and placed same in escrow as provided by the contract, but that said defendant failed and refused to open a joint bank account as agreed until July, 1937, and failed and refused to convert said personal property into cash and to discharge the mortgage on the real estate.

It was further alleged that prior to said proposal of marriage defendant owned, in addition to the property theretofore described, certain stocks, bonds, and other personal property set out in said petition, of the fair market value of $ 20,000, which he had secreted in safe deposit boxes at the defendant Mercantile-Commerce Bank & Trust Company and Mississippi Valley Trust Company for the purpose of deceiving and defrauding plaintiff. That in addition, at said times defendant owned bonds of the Investors Telephone Company of the par value of $ 3000, thirty shares of the common stock of said telephone company, and Hearst bonds of the value of $ 4208.06, all of which he had converted into...