Miles v. Macon County Bank
| Citation | 173 S.W. 713,187 Mo. App. 230 |
| Decision Date | 15 February 1915 |
| Docket Number | No. 11290.,11290. |
| Parties | MILES v. MACON COUNTY BANK OF MACON et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Randolph County; Alexander W. Waller, Judge.
Action by Joseph D. Miles, administrator of the estate of Marcus H. Moore, deceased, against the Macon County Bank of Macon, Mo., and another. From judgment for plaintiff, defendants appeal. Affirmed.
R. S. Matthews & Son and Guthrie & Franklin, all of Macon, for appellants. Web M. Rubey, B. R. Dysart, and Dan R. Hughes, all of Macon, for respondent.
The controversy herein is over an alleged balance claimed to be due from a bank to one of its depositors. While the relationship of depositor and bank existed, the latter turned over its cash loans, and other assets to a new and succeeding bank upon condition that the succeeding bank would assume and pay off all sums due from the old bank to its respective depositors and other creditors. This action was therefore brought against the new bank, and afterwards the old bank was, by leave of court, made a party defendant, and judgment was prayed against both. The suit was brought in Macon county by the depositor, Marcus H. Moore. On a change of venue, the case was sent to Randolph circuit court. Thereafter Moore died, and the cause was duly revived in the name of his administrator, after which it was tried, resulting in a judgment for plaintiff, and the defendants have brought the case here on appeal.
The old bank hereinabove referred to was the defendant the Citizens' Bank of Macon, which was engaged in a general banking business at Macon City on, and for many years prior to, August 27, 1907. On that day Marcus H. Moore being then about to remove from Macon county and become a resident of Kentucky, took a number of notes, aggregating something over $14,000, to said bank, and told the cashier, Lon Hayner, that he wanted to leave them with the bank for the collection of the interest thereon, and also the principal thereof, when that was proper, all of which were to be deposited, as collected, to Moore's credit in the bank. A list of these notes was thereupon made, showing the names of the makers, the dates, etc., and a receipt therefor was officially signed by said Hayner, as cashier of said bank. So far as the evidence shows, this was Moore's first transaction with the bank, and from that time on he became a resident of Kentucky.
Thereafter, between September 19, 1907, and March 18, 1911, various collections were made on these notes at different times; each collection being deposited in said bank to Moore's credit.
On June 13, 1911, the Citizens' Bank voluntarily went into the hands of the State Bank Examiner, who took charge of it with all its assets. While affairs were in this situation, the other defendant herein, the Macon County Bank, was organized by new and independent capital. It desired to succeed the old bank in its business and good will; and on the _____ day of July, 1911, with the approval of the State Bank Examiner, said new bank entered into a written contract with the old bank, whereby, according to plaintiff's contention, it assumed to pay all creditors of said old bank, and is therefore liable for whatever balance is due from said old bank to plaintiff. As soon as this contract was executed between the two banks, the Examiner turned the assets of the old bank back to it for the purpose of transferring the same to the new bank. Thereupon the old bank turned over to the new bank all its assets, including its banking house, furniture, and fixtures, and everything connected therewith.
The evidence shows that the sums so collected on the Moore notes and deposited to his credit in the old bank, while it was running, amounted in the aggregate to $11,222.74; that during that time Moore received or got the benefit of $3,217.34, made up of $1 paid for his benefit October 22, 1908, $2,400 lent on note of Gilbert Epperson (which note Moore got), and $816.34 cash paid to him August 19, 1909; that on the face of Moore's account with the old bank there was due him, as a depositor, a balance of $3,005.40 at the time the contract between the two banks was signed and went into effect. This amount was entered to Moore's credit on the deposit account of the new bank, and afterwards Moore checked out of it the sum of $2,975. This sum, with the $3,217.34 received by Moore from the old bank, made $6,192.34 obtained by Moore in all, which, deducted from $11,222.74, left $5,030.40 claimed by him to be due on November 6, 1911, when this suit was instituted. Of this amount, $30.40 was the difference between the deposit entered on the books of the new bank, $3,005.40, and Moore's check thereon of $2,975; and $5,000 was the amount of a charge entered on the books of the old bank, for which no check was given by any one, and which Moore claims was not drawn with his authority nor for his benefit. This $5,000 item charged against Moore's deposit was entered in the handwriting of Lon Hayner, the cashier, but bore no date. It was made somewhere between April 16, 1908, and June 5, 1908. As stated above, no check was given representing said $5,000 charge, and, at the time it was entered Moore's balance in the bank was $6,927.69, which this charge reduced to $1,927.69, and thereafter the balance, as shown on the books fluctuated, being $1,691.34 from April 3, 1909, to August 19, 1909, but thereafter it gradually rose to $3,005.40 on May 13, 1911, and remained at that figure until the bank closed.
It is readily seen that the main controversy herein is over the validity of this $5,000 charge. Moore claims that he did not know of it, never authorized it, and never got any money or benefit therefrom, either in notes or otherwise, and that, as it has never been paid to him, he is entitled to it and the remaining $30.40 of the deposit in the new bank.
Concerning this $5,000 charge and what went with the money, the respective parties have different and conflicting theories and present evidence in support of their respective sides. On the part of the defendant it is claimed that some time in 1907 or 1908, several years at least before the old bank failed, it was discovered by the directory that the bank was in bad condition; that among other bad loans and overdrafts was an overdraft of one Charles L. Pool, in the sum of $5,000, which the directorate told Hayner must be cared for and taken up; that in order to do this Hayner and Pool executed their joint note to the bank for $5,000, and with it squared the overdraft, and thus matters stood until about May 4, 1908. (Moore's balance then was nearly $7,000.) Defendants further claim, and their witness Hayner so testifies, that about that time he, having authority to make loans for Moore and to check on his account therefor, lent $5,000 of Moore's money in this wise: He drew his own note for $3,000, and took a $2,000 note on Charles L. Pool, dated February 20, 1907, payable to the bank, and secured by a second deed of trust on Pool's residence, and with these two notes took up the $5,000 Pool and Hayner note, and charged Moore's account with the $5,000. He says he did this with Moore's consent, and that Moore accepted the two notes and made no objection thereto. The $3,000 Hayner note was originally payable to the bank, but Hayner says this was by mistake; it being inadvertently made on one of the bank's blank forms. He practically admits that he did not send the Pool note to Moore in Kentucky, but did send his own note for $3,000, and wrote Moore that he had made another loan for $2,000, but did not tell him to whom. Moore laid aside the $3,000 note, and later on took it to Missouri and asked Hayner what he meant by sending him one of the bank's notes without having it indorsed to him. Hayner told him that was a mistake, and tore up the old note and made a new one in its stead, payable to Moore, and delivered it to him. The Pool note of $2,000 was never entered on the bank's books as a part of its assets, but Hayner says it was payable to the bank and was given as general collateral for whatever Pool owed therein. Hayner also says, after he sent to Moore his $3,000 note and the letter telling of the other $2,000 loan, he waited a little while for a reply, and then charged Moore's account with the $5,000 item and took up the Pool and Hayner note. He admits that he got no reply from Moore in regard to it. He also admits that there was no action on the part of the board of directors authorizing him to transfer the Pool note to Moore.
In further support of the contention that Moore knew of and assented to the $3,000 loan to Hayner and the $2,000 loan on the Pool note, defendants offered evidence to show that there was a passbook of Moore's deposit account which corresponded to the ledger account, and which disclosed that his account was balanced on August 12, 1909, and showed a balance of $1,691.34, and that on August 14th, two days later, Hayner gave Moore a statement of the notes remaining in the bank for collection, in which this balance was recited, and in which the Pool note was listed; that Hayner showed the passbook to Moore and gave him the list of notes, and no objection thereto was made by him. Moore, however, denies ever seeing said passbook, although, after the bank failed, a statement of the account was sent to Moore wherein a charge of $5,000 is shown. It bears no date, and does not show what it was for, nor to whom it went. And although the list of notes given or sent to Moore on or about August 14, 1909, contained the Pool note, this did not inform Moore as to its status, because, when Hayner wrote to Moore on April 3, 1909, he referred to the Pool note merely as "a note of $2,000 on town property here."
Defendants also offered evidence to show that in June, 1911, after the bank failed, Moore appeared at Macon, and, in company with his nephew by marriage, Judge Hopkins B. Shain, of Sedalia, who...
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