Moore v. First Nat. Bank

• Decision Date: 06 March 1911
• Citation: 135 S.W. 1005,154 Mo. App. 516
• Parties: MOORE v. FIRST NAT. BANK OF KANSAS CITY.
• Court: Missouri Court of Appeals

135 S.W. 1005

154 Mo. A. 516

MOORE v. FIRST NAT. BANK OF KANSAS CITY.

Kansas City Court of Appeals. Missouri.

March 6, 1911.

Rehearing Denied April 3, 1911.

1. TRUSTS (§ 352)—TRUST FUNDS—INTERMINGLING.

If one mixes trust funds with his own money, the whole will be treated as trust property, except so far as he is able to distinguish what is his.

2. BANKS AND BANKING (§ 134)—DEPOSITS— TRUST FUNDS.

A bank may not use a deposit to pay the individual debt of a depositor where it knows that the deposit is held in a fiduciary capacity.

3. TRUSTS (§ 357)—TRUST FUNDS—APPROPRIATION —NOTICE OF CHARACTER OF FUNDS.

A party charged with the appropriation of trust funds is liable only on proof that he had notice that they were such.

4. BANKS AND BANKING (§ 134)—USE OF DEPOSIT —TRUST FUNDS.

In an action by a receiver of a corporation against a bank for money had and received, proof that defendant knew that some of the money on deposit in the receiver's name and appropriated by it belonged to the estate of the corporation was not sufficient to render it liable without proof that the estate was depleted thereby to the extent of leaving an insufficient sum in the receiver's hands to pay existing liabilities.

5. BANKS AND BANKING (§ 134)—DEPOSITS — TRUST FUNDS.

In an action by a receiver against a bank for appropriating a portion of money on deposit in plaintiff's name as receiver but composed of funds belonging to the receiver individually and also to the estate, the burden was on plaintiff to show that the amount appropriated depleted the trust estate.

Appeal from Circuit Court, Jackson County; Hermaun Brumback, Judge.

Action by William Moore, receiver, against the First National Bank of Kansas City, Mo. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Ball & Ryland, for appellant. Thomas H. Reynolds and Lathrop, Morrow, Fox & Moore, for respondent.

BROADDUS, P. J.

This is an action for money had and received.

The conceded facts are that in the year 1905 J. D. White, under appointment by the court, was acting receiver of a millinery corporation doing business under the name of the Winning-Blair Millinery Company, and that he continued as such until February 26, 1906, when he was removed and the plaintiff appointed in his place; that during the time said White was such receiver he deposited in defendant bank certain funds to his credit as such receiver; that during the year 1905 he delivered to the defendant three checks upon said fund aggregating $791.99. The petition alleges that said fund was the property of said estate in the hands of said White, which defendant appropriated to its own use, and upon demand refuses to deliver to plaintiff. The answer admits that White was the receiver of said millinery company, and that he kept a deposit account with defendant in his name as receiver, and admits that said White paid to defendant by his check on said account the three checks mentioned in the aggregate of $791.99. Defendant alleges that said payments were made on account of interest due and owing to defendant; that, while said deposit account stood at the time in the name of said White as receiver, yet as a matter of fact, at the date of the giving and payment of said checks, the deposit account on which the same were drawn contained and represented individual deposits of the personal funds of the said White greatly in excess of the amount of said checks, and that the payment of said checks did not in any wise or to any extent impair or deplete the funds of the estate of which the said White was receiver. At the time White was appointed receiver, the Winning-Blair Millinery Company was indebted to the defendant bank on five notes aggregating $17,500. Soon after White was appointed receiver, he gave his individual note to the bank for this indebtedness, which was reduced at times and renewal notes taken until October 5, 1905, when he gave his personal note for $14,758. Upon White's personal note given to the bank as aforesaid, he paid interest with the checks mentioned, drawn on the account as stated, of which he was receiver. White...