Minto v. Minto

• Decision Date: 31 December 1947
• Citation: Minto v. Minto, 207 S.W.2d 842, 239 Mo.App. 1162 (Mo. App. 1947)
• Parties: Robert Keet Minto, Plaintiff and Appellant, v. Dorothy H. Minto, and the Southern Missouri Trust Company, Defendants; the Southern Missouri Trust Company, Respondent
• Court: Missouri Court of Appeals

207 S.W.2d 842

239 Mo.App. 1162

Robert Keet Minto, Plaintiff and Appellant, v. Dorothy H. Minto, and the Southern Missouri Trust Company, Defendants; the Southern Missouri Trust Company, Respondent

Court of Appeals of Missouri, Springfield District

December 31, 1947

Appeal from Division 2 of the Greene County Circuit Court; Hon Warren L. White, Judge.

Affirmed.

Arch A Johnson, and Wear & Wear, for appellant.

Respondent in paying appellant's money on deposit with it to Dorothy Minto, his agent, did so with knowledge that the transaction was unusual, improbable and extraordinary, and it also knew that her interest and that of her principal were necessarily adverse, and such payment did not discharge its obligation to account to appellant for his money.2 C. J. 562;2 C. J. S 1199 Par. 2;Miles F. Bixler Co. v. Riney,7 S.W.2d 396;Freedman & Sons v. Kelly,126 Mo.App. l. c 290;Stephens v. John F. Roper,41 L. R. A. (N. S.) 1143;Paine v. Sheridan Trust Co.,172 N.E. 268;Phez v. Salem Fruit Co.,233 P. 547;Fidelity Trust Co. v. Fowler,217 S.W. 953(Texas);2 C. J. 561, Note 78-563; Note 85.Under the facts and circumstances it was not necessary that appellant specifically instruct respondent not to permit his agent to withdraw his funds.2 C. J. S. 1222, Sec. 98;21 P. 2,542 2 C. J. 558; Notes 45-48.One not prejudiced by delay on the part of another can not meritoriously interpose a plea of laches.Matthews v. Van Cleve,221 S.W. 34;Davies v. Keiser,246 S.W. 897;Blackford Herman Con. Co., 132 Mo.App. 157;Wendell v. Ozark Orchard Co.,200 S.W. 747;Myer v. Ritter,268 F. 937;Burress v. Richardson, et al., 216 S.W. 800.

Frank C. Mann, C. Wallace Walter, Mann & Mann, for respondent.

Dorothy H. Minto acted within the scope of her authority in drawing check on appellant as his attorney-in-fact and payment thereon by respondent to her was equivalent to payment to appellant himself, thus discharging the respondent, and this is true although she acted for her own or other improper purpose.2 Am. Jur., page 271, Section 349, pp. 281, 282, Section 362;Am. Law Institute, Restatement of the Law of Agency, Section 165, pages 403, 404 and 405;New York Indemnity Co. v. Andrew County Bank,227 Mo.App. 878, 59 S.W.2d 741, 743;School District No. 61 v. Railey and Bro. Banking Co., 227 Mo.App. 543; 55 S.W.2d 699, 701.Respondent, being without notice of any improper purpose of appellant's agent, was bound to honor the check drawn against appellant's account by Dorothy H. Minto, who had actual authority to draw such check, as respondent, had a right to assume that she was acting honestly, and it was not put on inquiry as to the intended use of the proceeds of the check.Globe Indemnity Co. v. First National Bank of St. Louis(Mo. App.),133 S.W.2d 1066, 1071;Fitzgerald v. Colorado Life Insurance Co.,233 Mo.App. 235, 250, 116 S.W.2d 242, 251;New York Indemnity Co. v. Andrew County Bank,227 Mo.App. 878, 59 S.W.2d 741, 843;School District No. 61 v. Railey and Bro. Banking Co., 227 Mo.App. 543, 55 S.W.2d 699, 701;United States Fidelity and Guaranty Co. v. Mississippi Valley Trust Co.(Mo. App.),153 S.W.2d 752, 758, 759;Perles and Stone v. Childs Co.,340 Mo. 1125, 104 26 R. C. L., Par. 174, page 1360.Where agent's act is done in the course of the agency and by virtue of the authority as agent, as in this case, the principal is responsible, even though the act is fraudulent, the principal has no knowledge thereof and receives no benefit therefrom.2 Am. Jur., pp. 281, 283, Sections 362,363;Globe Indemnity Co. v. First National Bank of St. Louis(Mo. App.),133 S.W.2d 1066, 1071;New York Indemnity Co. v. Andrew County Bank,227 Mo.App. 878, 59 S.W.2d 741, 743;School District No. 61 v. Railey and Bro. Banking Co., 227 Mo.App. 543, 55 S.W.2d 699, 701.Since respondent acted in good faith in honoring the check drawn by Dorothy H. Minto as appellant's attorney-in-fact against appellant's account, and since respondent was without knowledge of the intended use of the proceeds of this check and received no benefit therefrom, it cannot be held liable for any application made by appellant's agent of the proceeds of this check.School District No 61 v. Railey and Bro. Banking Co., 227 Mo.App. 543, 55 S.W.2d 699, 701;United States Fidelity and Guaranty Co. v. Mississippi Valley Trust Co.(Mo. App.),153 S.W.2d 752, 758;McCullam v. Third National Bank,209 Mo.App. 266, 237 S.W. 1051, 1056.The contract of March 6, 1945 between appellant and Dorothy H. Minto modified the general power of attorney held by her only to the extent therein expressly provided for and, under the doctrine of expressio unius est exclusio alterius, no other modification was effected.Cross. v. Nee (District Court, W. D. Mo.), 18 Federal Supplement 589, 594;Hoover v. National Casualty Co.,236 Mo.App. 1093, 162 S.W.2d 363, 365.The power of attorney by which appellant appointed Dorothy H. Minto his general agent and authorized her, among other things, to withdraw his funds from any banking institution, was in full force and effect at the time she drew the check of April 4, 1945, on appellant as his attorney-in-fact and this power of attorney was not revoked until the revocation was filed of record on April 30, 1945.R. S. of Mo., 1939, Sections 3433,3434.Even assuming that Dorothy H. Minto did not have authority to withdraw the funds of appellant on April 4, 1945, which proposition is denied by respondent, appellant is under the circumstances of this case estopped from denying such authority and must suffer the loss resulting from her act.New York Indemnity Co. v. Andrew County Bank,227 Mo.App. 878, 59 S.W.2d 741, 743;Kuraner v. Columbia National Bank of Kansas City,230 Mo.App. 358, 90 S.W.2d 465, 470, 472;American Employers Insurance Co. v. Manufacturers and Mechanics Bank,229 Mo.App. 994, 85 S.W.2d 174, 179;Knickmeier v. Fleer et al.(Mo. App.),185 S.W.2d 57, 60, 61.In any event, the doctrine of Laches will prevent relief to appellant who stood idly by with knowledge of his rights and allowed the situation to so change that it would be an injustice to respondent to grant the relief the appellant now seeks.Ruckels v. Pryor,351 Mo. 819, 174 S.W.2d 185, 189;Dicke v. Roudebush(Mo. App.), 138 S.W.2d 678, 683.

Blair, J. Fulbright, P. J., not sitting.Vandeventer, J., concurs.

OPINION

BLAIR

The pleadings, which will be noticed, are a 2nd amended petition and a 2nd amended answer.

The action was commenced on May 1, 1945, by plaintiff(now appellant) against Dorothy H. Minto, alone, as defendant.The Southern Missouri Trust Company(named as one of the defendants, and now respondent) was not made a defendant until March 29, 1946, when the 2nd amended petition was filed.

There is no question about the facts alleged in the first eight paragraphs of the 2nd amended petition, and we can find, from such paragraphs, and from all the evidence in the case, that defendant, The Southern Missouri Trust Company, was a banking corporation, under the laws of the State of Missouri, at Springfield, Missouri, at all the times mentioned in such amended petition; that Dorothy H. Minto and appellant were formerly husband and wife and were divorced in the Circuit Court of Greene County, Missouri, on April 6, 1945; that appellant and defendantDorothy H. Minto entered into a contract on March 6, 1945, in view of the expected dissolution of such marriage; that, when such contract was entered into appellant, and his then wife, owned certain real estate in Springfield, Missouri, which we think it unnecessary to describe.

Under the original contract, the defendantDorothy H. Minto, then wife of the appellant, was authorized, among other things, to execute in appellant's name, contracts, deeds and other instruments relating to the sale of said property.It was further provided in said contract, that Dorothy H. Minto could sell and convey said property and that the net proceeds thereof should be divided as follows:

"That said defendant was to deposit in a separate account, to the credit of plaintiff one-half of such net proceeds of the sale, plus the sum of $ 500.00, and the balance of said sale price of said real estate was to go to the said defendant."

It is further undisputed that, on April 2, 1945, the sale of such real estate was consummated and the sum of $ 4,502.67 wats deposited in respondent bank in the name of appellant.Previously, a new contract had been entered into which made respondent, The Southern Missouri Trust Company, an escrow agent.

On May 30, 1944, appellant had executed a general power of attorney, whereby he constituted Dorothy H. Minto his true and lawful attorney, among other powers, "To deposit and withdraw in or from any banking institution, any funds, negotiable paper or moneys."The power of attorney in this respect was not changed by the new contract, even though appellant and his wife may not have had such matrimonial difficulties, when said power of attorney was executed.

The second amended petition charges that, on April 4, 1945, "the defendantDorothy H. Minto wrongfully, unlawfully and without authority drew a check on plaintiff's account in said Southern Missouri Trust Company payable to the order of Dorothy H. Minto, in the sum of $ 4,002.67," as such attorney in fact and invested the proceeds in certain real estate, described in such amended petition.

As appellant claimed that The Southern Missouri Trust Company had no right to honor said check and pay the proceeds thereof over to defendantDorothy H. Minto, under the circumstances he sought judgment in said 2nd amended petition against both defendantDorothy H. Minto and The Southern Missouri Trust Company, for $ 4,002.67, with interest from April 4, 1945, and asked that...