Miller v. Rosebud Bank

• Decision Date: 03 May 1938
• Citation: 116 S.W.2d 267,234 Mo.App. 647
• Parties: VERNA MILLER, RESPONDENT, v. ROSEBUD BANK, A DELINQUENT CORPORATION IN CHARGE OF R. W. HOLT, STATE FINANCE COMMISSIONER OF MISSOURI, APPELLANT
• Court: Missouri Court of Appeals

116 S.W.2d 267

234 Mo.App. 647

VERNA MILLER, RESPONDENT, v. ROSEBUD BANK, A DELINQUENT CORPORATION IN CHARGE OF R. W. HOLT, STATE FINANCE COMMISSIONER OF MISSOURI, APPELLANT

Court of Appeals of Missouri, St. Louis

May 3, 1938

Rehearing Overruled May 18, 1938.

Appeal from Circuit Court of St. Louis County.--Hon. Robert W McElhinney, Judge.

Judgment affirmed.

Booth & Anding and Joseph T. Tate for respondent.

(1) It is a well-settled rule in this state that when a certificate of deposit or check is presented for payment and payment is refused while the bank is still open and functioning, the bank will thereafter be deemed to hold the amount as trustee. Laclede Trust Co. v. Rodenberg, 93 S.W.2d 55. Bank of Poplar Bluff v. Millspaugh, 313 Mo. 412, 281 S.W. 733. In re Farmers & Merchants Bank of Center, 83 S.W.2d 198; Johnson v. Farmers Bank of Clarksdale, 223 Mo.App. 513, 11 S.W.2d 1090; Koehler v. Joplin State Bank, 68 S.W.2d 728; Claxton v Cantley, 297 S.W. 975; Hiatt v. Miller Bank, 224 Mo.App. 1040, 34 S.W.2d 532. (2) Where payment is demanded on matured certificates of deposit, and claimant does not voluntarily consent to a renewal, the right to preference is not waived. Niewald v. Rosebud Bank et al., 78 S.W.2d 464. (3) If the trial court's conclusion of fact is supported by the evidence then plaintiff is entitled to have his claim allowed as a preferred claim. In re Cooper County State Bank, 67 S.W.2d 109; Kent v. Bolckow State Bank, 70 S.W.2d 129. Where an issue of fact rests on the credibility of witnesses, the court will usually defer to the finding of the chancellor. Mosier v. Miners and Merchants Bank, 80 S.W.2d 207. Hunnell et al. v. Zinn, 184 S.W. 1154, l. c. 1157. (4) Filing of general claim against an insolvent bank covering the entire indebtedness due claimant does not estop claimant to assert preference. Fidelity National Bank & Trust Co. v. Farmers Exchange Bank of Gallatin, 45 S.W.2d 1090; Macon County v. Farmers Trust Co. et al., 29 S.W.2d 1096. (5) Relationships are created by the conduct or agreement of both parties and not by the voluntary act of one party without the knowledge or consent of the other. Evans v. Peoples Bank, 6 S.W.2d 655; Noll v. Harrison County Bank, 11 S.W.2d 73; Deal v. Bank of Smithville, 52 S.W.2d 201. (6) Estoppel in pais cannot be proved under a general denial, but is new matter and the facts constituting the estoppel must be alleged in the answer. Ambruster v. Ambruster, 31 S.W.2d 28; State v. Power Company, 93 S.W.2d 887; Grafeman Dairy Co. v. Northwestern Bank, 288 S.W. 359, 315 Mo. 349; Horrigan Realty Co v. First National Bank, 273 S.W. 772; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Bartlett v. McAllister, 289 S.W. 814; Bliss, Code Pleading (2 Ed.) sec. 364. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel. National Match Co. v. Empire Storage & Ice Co., 58 S.W.2d 797; Missouri Cattle Loan Company v. Insurance Co., 52 S.W.2d 1; 21 C. J., par. 139, page 1139; 10 R. C. L., page 692. The finding of the court on the question of estoppel is conclusive on appeal. State ex rel. Richards v. Fidelity & Casualty Co., 82 S.W.2d 123. (7) Waiver is an affirmative defense and cannot be considered under a general denial. Turner v. Farmers Exchange Bank of Gallatin, 45 S.W.2d 1084, l. c. 1086; Neville et al. v. D'Oench et al., 34 S.W.2d 491; Powell v. Dorton, 12 S.W.2d 453; Gray v. Cooper, 274 S.W. 94; State ex rel. v. Peterson, 142 Mo. 526; McCullough v. Insurance Co., 113 Mo. 606, 21 S.W. 207. Acts, conduct or nonaction, to be construed as waivers, must be manifestly consistent with or indicative of intention to waive, or to relinquish the right so that no other reasonable explanation is possible. Grande Engineering Co. v. Grande Building Company, 86 S.W.2d 595; Andrews v. Insurance Co., 93 S.W.2d 1045; Langdon v. Kluman, 278 Mo. 236, 211 S.W. 877.

C. L. Shotwell for appellants.

(1) The theory of the parties below must be considered their position in a higher court and they will not be permitted to depart from the theory adopted below. Henry County v. Bank, 208 Mo. 209, l. c. 225. (2) Where a claimant filed with the Commissioner of Finance his claim against an insolvent bank based on two certificates of deposit and that claim is certified to the Circuit Court for determination as to claimant's rights to preference, he cannot in the Circuit Court file an amended petition and recover on a claim for two other and entirely different certificates. Engle v. Farrell, 126 Mo.App. 577; State ex rel. v. Page Bank, 322 Mo. 29, 14 S.W.2d 597, l. c. 600. Henry County v. Bank, 208 Mo. 209, l c. 226. (3) By taking renewal certificates of deposit the plaintiff waived his right to demand payment of the original certificates and the demand made, if any, for payment of the original certificates was also waived. Henneman v. Rosebud Bank, 78 S.W.2d 113; Hayes v. Manning, 263 Mo. 1, l. c. 45; Henderson v. Koenig, 192 Mo. 690, l. c. 714. (4) It is necessary that demand be made for payment of a certificate of deposit in order to constitute the bank a trustee ex maleficio. Linhart v. Farmer's State Bank, 43 S.W.2d 1062; 7 C. J. 650. (5) By having his renewal certificates of deposit, together with the interest thereon from date thereof to date of closing of bank, allowed against the bank as a common claim and by accepting a dividend on both the principal and interest of such claims, plaintiff is estopped from asserting that these certificates were renewed without his consent. Sage v. Finney, 156 Mo.App. 30, l. c. 42; Beavers v. Bank, 177 Mo.App. 100, l. c. 105; Wyse v Miller, 222 Mo.App. 165, 2 S.W.2d 806; Priest v. Oehler, et al., 41 S.W.2d 783; Halloway et al. v. Creamery Company, 286 Mo. 489, l. c. 502; Brackenridge v. Moberly, etc., 102 S.W.2d 679. (6) He who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions and renouncing every right inconsistent with them. A person cannot accept an instrument in part and reject it in part. Fox v. Windes, 127 Mo. 502, l. c. 511-12; Meade v. Railroad, 183 Mo.App. 353; Wilbur v. Wilbur, 201 S.W. 387; Kusnetsky v. Insurance Co., 313 Mo. 143, 281 S.W. 47; Grooms v. Mullett, 133 Mo.App. 477, l. c. 481; Allen v. Best, 227 Mo.App. 854, 58 S.W.2d 810; McDonnell v. De Soto Savings & Building Assn., 175 Mo. 250, l. c. 275; Price v. Hallett, 138 Mo. 561. see, also: Ess v. Griffith, 139 Mo. 322; Porter v. Life Assurance Society, 71 S.W.2d 766, l. c. 776; Hennemann v. Rosebud Bank, 78 S.W.2d 113, l. c. 117.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This is a suit in equity brought by respondent, plaintiff below, to establish a claim for preference against the Rosebud Bank, an insolvent banking corporation which was in charge of O. H. Moberly, State Finance Commissioner of Missouri, for purposes of liquidation. After this cause was argued and submitted in this court, R. W. Holt, Commissioner of Finance of Missouri, was granted leave as such Commissioner to enter his appearance in place of O. H. Moberly, former Finance Commissioner of Missouri, and the caption of the cause was amended by inserting said Commissioner's name in place of said O. H. Moberly.

The amended petition of plaintiff on which the case was tried alleged that, on June 1, 1932, he had on deposit in said bank the sum of $ 2343, evidenced by a certificate of deposit bearing four per cent interest, which was due and payable to him on that date; that, shortly after June 1, 1932, he presented said certificate for payment at said bank while it was open and doing business, but that payment was refused, although said bank at that time had sufficient assets and funds to pay said deposit.

The amended petition further alleged that plaintiff, on July 2, 1932, had on deposit in said bank the sum of $ 2,944.84, evidenced by a certificate of deposit bearing four per cent interest, which was due and payable to him on that date; that on July 2, 1932, he presented said certificate of deposit to said bank while the bank was open and doing business, but that payment was refused although said bank at that time had sufficient assets and funds to pay said deposit.

Plaintiff further alleged that on December 19, 1932, said bank was closed and all of its business and assets were placed in the hands of the Commissioner of Finance for the reason that said bank was insolvent; that the said bank and the Commissioner of Finance now have, and at the time the bank was closed had, on hand sufficient money and assets to pay the claim of plaintiff; that a claim was duly filed with the Special Deputy Commissioner in charge of the bank, and was allowed as a common claim and certified to the circuit court for adjudication as to priority of payment. Plaintiff prayed judgment for $ 5,391.86, and that said amount be decreed a trust fund in the hands of the Commissioner of Finance and be paid as a preferred claim.

The answer of respondents, hereinafter referred to as defendants, was a general denial. The suit was originally filed in the Circuit Court of Gasconade County, but, on plaintiff's application for change of venue, was transferred to the St. Louis County Circuit Court where it was tried. After a trial, the court rendered judgment in favor of plaintiff in the sum of $ 5,121.87, which sum was declared to be a trust fund in the hands of the Commissioner of Finance and was allowed and ordered paid as a preferred claim. After an unavailing motion for a new trial, defendants bring the case to this court by appeal.

The evidence shows that plaintiff was the owner and holder of a six months certificate of deposit issued by the defendant Rosebud...