Morris v. Butler

• Decision Date: 01 November 1909
• Citation: 122 S.W. 377,138 Mo. App. 378
• Parties: MORRIS v. BUTLER.
• Court: Missouri Court of Appeals

122 S.W. 377

138 Mo. App. 378

MORRIS v. BUTLER.

Kansas City Court of Appeals. Missouri.

November 1, 1909.

1. BILLS AND NOTES (§ 63) — EXECUTION — DELIVERY — "CONTRACT FOR PAYMENT OF MONEY."

Where the president of a bank authorized to lend plaintiff's money on real estate security only loaned it to a partnership consisting of himself and his cashier, for which he took notes, two of which were signed by himself and one by himself and the cashier, which he kept with his private papers in the bank, plaintiff having no knowledge that the money had been so loaned until after the failure of the bank, the notes did not constitute contracts for the payment of money for want of delivery.

2. APPEAL AND ERROR (§ 154) — RIGHT TO APPEAL — JUDGMENT — ACQUIESCENCE.

The president of a bank, having money to loan for plaintiff on real estate security only, loaned it without authority to a partnership consisting of himself and his cashier, and held the notes executed therefor without delivery. A receiver in bankruptcy having been appointed for the bank and for the president individually, plaintiff sued to recover the notes from the receiver, and obtained a judgment that she was entitled to the possession, and, having elected to take the value of the property, judgment was rendered in her favor against the receiver for the amount due thereof, whereupon the receiver, after appeal, filed a claim in the bankruptcy proceedings that the president was indebted to him as receiver of the bank in a specified amount, including one of the notes, "liability for which had been adjudicated" against the bank. Held, that plaintiff's judgment did not determine that the notes were a part of the estate of the bank, and hence the receiver's claim did not constitute a recognition of the conclusiveness of the judgment on him such as would effect an abandonment of the appeal.

3. WORDS AND PHRASES — "EXECUTE."

While, in strict legal understanding, the verb "to execute" as applied to notes, deeds, or written contracts, includes both signing and delivery, in popular speech it is often limited to the mere act of signing the instrument, and it was in this sense that it was used in an admission by defendant that the notes in question had been executed by the parties they purported to be executed by, both parties having subsequently treated the question of delivery as a controverted issue—[citing 3 Words and Phrases Judicially Defined, 2558].

4. PRINCIPAL AND AGENT (§ 166) — UNAUTHORIZED ACTS — RATIFICATION.

Where an agent had no authority to loan plaintiff's money except on real estate security, and she did not know at the time she demanded possession of notes evidencing loans made by the agent to others without authority that they were not notes of third persons secured by real estate, her demand for delivery did not constitute a ratification of the agent's act in making such loans and accepting the notes.

Appeal from Circuit Court, Bates County; Argus Cox, Special Judge.

Action by Celina Morris against W. J. Butler, as receiver of the Bates National Bank. Judgment for plaintiff, and defendant appeals. Motion to dismiss appeal denied. Judgment reversed.

John A. Eaton, E. H. McVey, and W. O. Jackson, for appellant. Thos. J. Smith, for respondent.

JOHNSON, J.

At the March term this court, speaking through Broaddus, P. J., announced the following opinion, reversing the judgment pronounced by the trial court in the case under consideration:

"The plaintiff sues the defendant as receiver in bankruptcy of the Bates County National Bank in replevin for the possession of two promissory notes made payable to her and purporting to have been executed by F. J. Tygard, and one note payable to her and purporting to have been executed by the said Tygard and J. C. Clark.

"The facts are that Tygard was the president, and Clark was the cashier, of said bank at and prior to the dates of said notes. The plaintiff placed in the hands of Tygard a certain sum of money with the understanding that he was to lend it for her on real estate security. Tygard, instead of lending the money, made some other disposition of it and wrote the notes, two of which were signed by himself and one by himself and Clark, but kept by himself with his private papers in the bank. Tygard was also declared a bankrupt, and said notes were taken possession of by the receiver in these proceedings. Plaintiff testified that she had no knowledge of the existence of the notes until after the bank and Tygard ceased to do business. A jury was waived, and the cause tried before the court. The finding was that the plaintiff was entitled to the possession of the so-called notes, and, as she elected to take the value of the property, judgment was rendered for her for the face value of the notes, less credits indorsed thereon. The defendant appealed. The plaintiff moves to dismiss the appeal on two grounds, only one of which we deem of sufficient importance to discuss.

"One of the grounds in respondent's motion to dismiss appeal is based upon the fact that since the appeal in this case he has appeared before the Honorable T. T. Crittenden, referee in bankruptcy, and made the following claim, to wit: `That F. J. Tygard, against whom a petition for bankruptcy has been filed, is indebted to him as receiver of said bank in the sum of $34,204.25, the consideration for which is as follows:' Then follows a long statement of items, in which are included the three notes mentioned, viz.: `One certain promissory note dated August 11, 1903, for $35,000, payable to Mrs. J. W. Morris, with interest, * * * liability for which has been adjudicated against the Bates National Bank, and on which there is a balance due in the sum of $1,155.98.' A similar statement is made of the other two notes. The defendant in response to said motion says: `Appellant further states that the filing of the claim in bankruptcy was for the purpose of preserving the estate of the receivership in the event of the happening of a contingency — i. e., liability under the controversy herein; that, if said claim is for no other or further purpose, then it is for the benefit of respondent, Celina Morris, as well as for the benefit of the appellant, in that each have a contingent interest. Appellant further states that the issue raised by the filing of the claim in bankruptcy is an issue of fact which this court will not pass upon. Appellant for further resistance states that no benefits have been received; that said claim has merely been filed, and action thereon awaits the result of this appeal, and that the said claim will remain in statu quo until the final determination of the appeal; that there has been no settlement of the controversy, or of the merits of the...