Nash v. Normandy State Bank, No. 39677.

CourtMissouri Supreme Court
Writing for the CourtVan Osdol
Citation201 S.W.2d 299
PartiesNASH et al. v. NORMANDY STATE BANK et al.
Decision Date10 March 1947
Docket NumberNo. 39677.
201 S.W.2d 299
NASH et al.
v.
NORMANDY STATE BANK et al.
No. 39677.
Supreme Court of Missouri, Division No. 1.
March 10, 1947.
Rehearing Denied April 21, 1947.

[201 S.W.2d 300]

Appeal from Circuit Court, St. Louis County, Division No. 2; John Witthaus, Judge.

Action by Helen C. Nash and R. B. Nash, doing business under the style and firm name of Daily Service Lines, Inc., against Normandy State Bank, a corporation, William McDonald and Henry H. Seib, for damages for fraudulent representations. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

Taylor R. Young and Alvin Goldman, both of St. Louis, for appellants.

Jesse E. Bishop, of St. Louis, for respondents.

VAN OSDOL, Commissioner.


Action to recover $8,500 actual and $1,500 punitive damages alleged as resulting from fraudulent representations by defendants whereby plaintiffs were induced to authorize the payment over to another, or others, of moneys which had been held by the defendant, Normandy State Bank, a depositary pursuant to an escrow agreement. At the conclusion of plaintiffs' case, the trial court sustained the three defendants' motions for a directed verdict; rendered judgment upon the verdict returned as directed; and subsequently overruled plaintiffs' motion for a new trial. Plaintiffs have appealed.

Plaintiffs-appellants have made no complaint of the trial court's ruling in directing a verdict for defendant-respondent, William McDonald; but they assign error of the trial court in directing verdicts for the defendants-respondents, Normandy State Bank and Henry H. Seib. Defendant-respondent, Henry H. Seib, is the cashier of defendant-respondent Bank — it is the view of plaintiffs-appellants that the evidence introduced and the inferences which may be fairly drawn therefrom are sufficient to require the submission of the issues of plaintiffs' case, as against these two defendants, to the jury.

In testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict, a plaintiff's evidence must be considered true and the plaintiff given the benefit of every inference of fact which can be reasonably drawn therefrom. Lowry v. Mohn, Mo.Sup., 195 S.W.2d 652; Hardin v. Illinois Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075; Section 112, Civil Code of Missouri, Laws of Missouri 1943, p. 387, Mo.R.S.A. § 847.112. If the evidence supporting the essential issues of plaintiff's case is substantial, it is sufficient and the case should be submitted to the jury. But it is a judicial function to determine whether the evidence is substantial, and, if it is not, there is nothing for the jury to decide. Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44.

We believe an extensive narration of the evidence and an exact statement of the theory of plaintiffs' claim are necessary to a proper understanding of the case.

One D. (Dorothy) K. Crisp had agreed to assign a 5/32 interest in an oil and gas lease on lands (Spitler tract) situate in Clinton County, Illinois, to plaintiffs for a consideration of $4,500.

An escrow agreement between plaintiff, R. B. Nash, and Crisp was executed March 8, 1940, in terms as follows,

"* * * in consideration of ten dollars in hand paid by party of the second part to party of the first part, said parties of part do herewith deposit with Normandy State Bank * * * that certain instrument, to-wit:

"Assignment of Oil and Gas Lease hereto attached, and $4500 in cash, as an escrow to be `held,' kept and retained until * * * a certain oil and gas well has been completed to the Devonian formation on the

201 S.W.2d 301

property described in the said attached assignment — at which time said oil and gas lease assignment shall be delivered to party of the 1st part and said $4500 to party of the Second part — Proof of same to be given escrow agent by affidavit of party of second part (Crisp) — and supported by Halliburton wire line measurements." (Our italics.)

On the same day, March 8, defendant Bank acknowledged the receipt of the escrow agreement and of the assignment of the interest in the lease, and of checks (subsequently collected by defendant Bank) aggregating $4,500; and undertook for a $10 consideration to hold and disburse the money "according to the tenor of the escrow agreement in our files.

March 9, 1940, Crisp entered into a contract under which well-drilling contractors, Kane and Shelbourne, were to complete the drilling of an oil well on the leased land "until * * * Devonian sand is reached." April 11, 1940, defendant Bank paid $3,500 (of the $4,500 held by it as a depositary pursuant to the escrow agreement, supra) to Shelbourne and others, to whom Crisp had made assignments of the money so held by defendant Bank.

An escrow holder is charged with the performance of an express trust governed by the escrow agreement with duties to perform for each of the parties, which duties neither can forbid without the consent of the other. Morris v. Davis, 334 Mo. 411, 66 S.W.2d 883; Meredith v. Meredith, 287 Mo. 250, 229 S.W. 179; Seibel v. Higham, 216 Mo. 121, 115 S.W. 987, 129 Am. St.Rep. 502; 19 Am.Jur., Escrow, § 13, p. 430; 30 C.J.S., Escrows, § 8, pp. 1203, 1204. The term "escrow" is generally applied to a written instrument so deposited, but the term has been applied, although technically somewhat inaptly, to money deposited to be held until the performance of a condition. 30 C.J.S., Escrows, § 3, pp. 1193, 1194. We think of no real reason, in the instant case, to pursue a more apt term to be applied to money thus specially deposited.

In our case, there was evidence introduced tending to show the Devonian lime formation (which carries sometimes one, sometimes two and sometimes three strata of "pay sand") in the "Centralia field" is at the depth of 2,900 to 3,000 feet. The Devonian lime formation was "topped" in drilling the particular well at a depth of 2,911 feet, and there was further drilling of eight or nine feet "to get into the pay sand." The drilling was continued into or through the Devonian lime formation to a drilled-well depth of 2,945 — the continued drilling was at the request of Crisp. According to the testimony of Shelbourne, in the continued drilling the "first strata was approximately nine feet of pay; it was around seven or eight in the second paysand; and in the third pay was practically all water, very little viscosity."

Now, as we understand, it is plaintiffs' position that defendant Bank should not have paid the money to Shelbourne and others (assignees of Crisp) because the well was not completed "to" but was drilled through the Devonian lime...

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24 practice notes
  • Forbis v. Forbis, No. 7337
    • United States
    • Court of Appeal of Missouri (US)
    • January 8, 1955
    ...and presumptions usually do not run backward [Glover v. Bruce, supra, Mo., 265 S.W.2d loc.cit. 353; Nash v. Normandy State Bank, Mo., 201 S.W.2d 299, 303(6); Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718, 722(4); Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...the same condition existed on February 12, 1951. And see Glover v. Bruce, Mo.Sup., 265 S.W.2d 346; Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 2......
  • Cannon v. Bingman, No. 7989
    • United States
    • Court of Appeal of Missouri (US)
    • February 28, 1962
    ...to act upon his statement of his injury, the law will impute to him a fraudulent purpose.' In Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, 304[10-12] (cited), the law is stated: '* * * If 'he states material facts as of his own knowledge, and not as a mere matter of opinion or gene......
  • Powers v. Shore, No. 42223
    • United States
    • United States State Supreme Court of Missouri
    • April 14, 1952
    ...thereon. (9) And his consequent and proximate injury.' 37 C.J.S., Fraud, Sec. 3, page 215. And see Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, 303 and cases cited: Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897, 902; Gockel v. Gockel, Mo.App., 66 S.W.2d 867, 870, 92 A.L.R. 784; 23 A......
  • Request a trial to view additional results
24 cases
  • Forbis v. Forbis, No. 7337
    • United States
    • Court of Appeal of Missouri (US)
    • January 8, 1955
    ...and presumptions usually do not run backward [Glover v. Bruce, supra, Mo., 265 S.W.2d loc.cit. 353; Nash v. Normandy State Bank, Mo., 201 S.W.2d 299, 303(6); Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718, 722(4); Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...the same condition existed on February 12, 1951. And see Glover v. Bruce, Mo.Sup., 265 S.W.2d 346; Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 2......
  • Cannon v. Bingman, No. 7989
    • United States
    • Court of Appeal of Missouri (US)
    • February 28, 1962
    ...to act upon his statement of his injury, the law will impute to him a fraudulent purpose.' In Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, 304[10-12] (cited), the law is stated: '* * * If 'he states material facts as of his own knowledge, and not as a mere matter of opinion or gene......
  • Powers v. Shore, No. 42223
    • United States
    • United States State Supreme Court of Missouri
    • April 14, 1952
    ...thereon. (9) And his consequent and proximate injury.' 37 C.J.S., Fraud, Sec. 3, page 215. And see Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, 303 and cases cited: Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897, 902; Gockel v. Gockel, Mo.App., 66 S.W.2d 867, 870, 92 A.L.R. 784; 23 A......
  • Request a trial to view additional results

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