Morris v. Butler
| Decision Date | 01 November 1909 |
| Citation | 122 S.W. 377,138 Mo.App. 378 |
| Parties | CELINA MORRIS, Respondent, v. W. J. BUTLER, Receiver of Bates National Bank, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. Argus Cox, Special Judge.
REVERSED.
Judgment reversed.
John A Eaton, E. H. McVey and W. O. Jackson for appellant.
There is no evidence that the receiver of the Bates National Bank ever had the notes in controversy herein in his possession and the court erred in finding that the receiver was in possession of the notes. Kirk v. Kane, 87 Mo.App 274. Delivery and acceptance are essential prerequisites to the validity of a promissory note. Carter v. McClintock, 29 Mo. 464; Welch v. Dameron, 47 Mo.App. 221. Plaintiff must recover in this action altogether upon the strength of her own title. She pleads right to possession by reason of ownership, and she must prove ownership before she is entitled to recover. Westbury v. Millington, 89 Mo.App. 294; Lute v. Bank, 141 Mo. 584.
Thos. J. Smith for respondent.
The court below on behalf of the plaintiff instructed under the first declaration of law as follows: "The court declares the law to be that in this case the finding and judgment must be for the plaintiff for the recovery of the notes sued for." No objection was made by the defendant to the giving of this instruction, nor was any such alleged error called to the court's attention in the defendant's motion for new trial. This being true, this court will not undertake to review the judgment of the court below, the action being one at law. Logan v. Enterprise, etc., Co., 47 Mo.App. 513; O'Neil v. Young, 58 Mo.App. 631; See v. Insurance Co., 60 Mo.App. 522; Boulton v. Columbia, 71 Mo.App. 524; Profit v. Railroad, 91 Mo.App. 369. This rule obtains as fully where the action has been tried by the court as if tried by jury. Hill v. Kingsland, 131 Mo. 648; Zimmerman v. Railroad, 156 Mo. 565-6, and authorities cited. The appellant, after the rendition of the judgment in this case, which, among other things, vested title to the notes in question in appellant, having filed and made proof of the same in his favor before the referee in bankruptcy of the estate of F. J. Tygard, bankrupt, thereby accepted and recognized as valid and binding the judgment in this case, which being an entirety, appellant cannot now be heard to question. Waddingham v. Waddingham, 27 Mo.App. 608; McClannahan v. West, 100 Mo. 323; Aull v. Transit Co., 149 Mo. 15; Dulaney v. Buffum, 173 Mo. 13. Although the notes in question were not in fact manually delivered to the plaintiff in this case prior to the time of the institution of the suit, the record shows that they were executed for actual money received, and demand made of the maker (Tygard) for the possession of the notes, which facts constitute a ratification by the plaintiff of the fact of the taking of the notes and of a constructive delivery of the same to her. It is well settled that a subsequent ratification is equivalent to a prior authorization in matters of this character.
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 Hon. 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 thirty-five hundred dollars 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 eleven hundred, fifty-five and 98-100 dollars.' 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 than 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 case, or no satisfaction of the judgment and no acquiescence therein."
Under the facts, as a matter of law, plaintiff was not entitled to recover as against the receiver. We will not attempt to review the authorities of the defendant to sustain his position that the plaintiff failed to make out a case. It is sufficient to say that the so-called notes were not contracts for the payment of money as they had never been delivered. There was no agreement that Tygard and Clark would execute the papers, or that plaintiff had accepted them after they were made.
And the claim of ownership of the papers made by the defendant as receiver of the bank ought not to preclude him from a hearing on this appeal. The judgment in this case does not determine that the notes in question are a part of the estate of the bank. It determines, on the contrary, that they are the property of this plaintiff which defendant wrongfully detains as such receiver. If the claim of defendant is to be construed according to the language used, his claim cannot have any reference to the adjudication in this case as there was no such adjudication. And an exhibit of the judgment and proceedings in this case would not support his claim before the referee. And no proof that he could make aliunde of the record would support any such claim. Therefore, we hold there is no such claim in fact before the referee that would amount to an abandonment of this appeal or a recognition of its conclusiveness upon the defendant. The judgment herein has no basis whatever for its support and it would be a great injustice to let it stand against defendant and the creditors of the bank whom he represents."
A motion for rehearing filed by plaintiff was sustained and the cause was resubmitted at the present term. A thorough reconsideration of the briefs and arguments of counsel has resulted in the conviction that we properly dealt with the case in our former opinion and we readopt that opinion as a correct...
To continue reading
Request your trial