OPINION
VANDEVENTER
This is
a suit on a promissory note dated the 15th day of May, 1932
payable to Farmers & Traders Bank of Bland, Bland, Missouri,
in the original sum of $ 1750.00 with interest from date at
the rate of 6%, payable on demand. The plaintiff, in his
petition, accounted for his ownership as follows:
'Plaintiff
further states that on the ___ day of _____, 19__ the Farmers & Traders Bank of Bland, Missouri, the legal holder of said
note closed its doors and was immediately
taken over by the Commissioner of Finance for the purpose of
liquidation, and that the liquidation was still in progress
on August 3, 1937. Plaintiff further states that on said date
of August 3, 1937, for a valuable consideration the Farmers & Traders Bank of Bland, Bland, Missouri, through O. H.
Moberly, Commissioner of Finance, sold, conveyed and
delivered said note to H. D. Neese, and that on the ___ day
of _____, 19__, for a valuable consideration, the said H. D.
Neese sold, conveyed and delivered said note to this
plaintiff; and that the plaintiff is now the legal holder
thereof and entitled to payment thereon.'
The
answer admitted the execution of the note but as an
affirmative defense alleged that it was given to take up an
overdraft in defendant's account which overdraft was
caused by one H. D. Neese, then cashier of the bank, drawing
$ 2,000.00 from defendant's account without his consent.
It was further alleged that at the time of the execution of
the note, the bank was insolvent and that a short time
thereafter, it closed its doors and was taken over by the
Commissioner of Finance of the State of Missouri for the
purpose of liquidation. The petition then stated that H. D.
Neese came into the possession of the note 'at the time
the assets, property and affairs of said bank were finally
wound up and liquidated.'
A reply
denied the allegations of the answer.
The
evidence on the part of the plaintiff was that on May 5,
1932, H. D. Neese was cashier of the Farmers & Traders Bank
of Bland and that the defendant executed the note aforesaid
and his account in the bank received credit for the proceeds.
That the bank went into the hands of the Commissioner of
Finance on the 27th day of January, 1933 and that at that
time the note was an asset of the bank. On the back of the
note three payments were credited and dated May 15, 1933,
August 8, 1933 and August 30, 1935, and these payments were
made by defendant after insolvency and while the Commissioner
of Finance was in charge of the bank. On the back of the note
were the following indorsements.
'Aug. 3, 1937
'For value received I hereby assign this note to H. D.
Neese without recourse.
'Farmers & Traders Bank, Bland Mo. O. H. Moberly
Commissioner of Finance by
John W. Terrill
John W. Terrill Special
Deputy Commissioner of Finance in charge.
'For Value without recourse, I assign this note to Geo.
Neidert.
H. D. Neese.'
The
sole question here is whether the plaintiff showed that he
had such an interest in the note as would entitle him to sue
thereon. We will address ourselves therefore to the evidence
that throws light on that question.
The
plaintiff testified that he received the note from H. D.
Neese paying him approximately $ 500.00 for the same, and
that the indorsement of Mr. Neese was on the back of it. That
he had demanded payment from defendant and payment had been
refused. A portion of his testimony follows:
'Q.
You have stated, in answer to a question by Mr. Allison that
Mr. Neese was working on the liquidation of this bank. Do you
remember who was the Special Deputy Commissioner in charge of
the bank, officially? A. I can't remember his name just
now, but I knew they were working together.
'Q.
Was it John W. Terrill? A. Yes sir.
'Q.
Was that the man in charge of the liquidation of the bank? A.
I think that is right.
'Q.
Neese was not the one acting as Special Deputy Commissioner
in charge of the bank? A. They worked together. They was
always both in there when I was there.'
H.
D. Neese testified in part as follows:
'Mr.
Tate: After the bank went into liquidation, did you have
anything to do with the liquidation?
'The
Witness: All that I had to do was to co-operate with the
Special Deputy Commissioner.
'Mr.
Tate: Who was that?
'The Witness: Mr. John W. Terrill.'
He
further testified that immediately after the bank closed, he
assisted in the preparation of an inventory of its assets and
that the note in question was presented to the Deputy Finance
Commissioner as property of the bank and that it was included
in the inventory dated May 5, 1932. For all the property of
the bank, John W. Terrill as Special Deputy Commissioner of
Finance signed a receipt, which together with the inventory,
was filed in the office of the Circuit Clerk and Recorder of
Gasconade County.
'Mr.
Tate: Is that the same as is now known as
'Plaintiff's Exhibit No. 1'?
'The
Witness: Yes, sir.
'Q.
After that inventory was prepared, including plaintiff's
Exhibit No. 1, was that inventory turned over to Mr. J. W.
Terrill? Mr. J. W. Terrill, the Special Agent of the Finance
Commissioner, and a receipt given for the same? A. Yes, and
it was turned over to the County Recorder's office in our
county seat.
'Q.
Did you see Mr. J. W. Terrill's signature? A. Yes sir.
'Q.
Will you look at this, and state if that is Mr. Terrill's
signature for the receipt of this inventory? A. Yes, that is
his signature.
'Q.
The date is what? A. February 24th, 1933.
'Q.
During the time that J. W. Terrill was Deputy Commissioner of
Finance in charge of the affairs of the Farmers & Traders
Bank, you received this inventory which included the asset
known as Plaintiff's Exhibit No. 1? A. Yes, sir.
'Q.
Did you assist Mr. Terrill in the liquidation of the bank? A.
I co-operated with him, yes sir.'
'Mr.
Tate: I will hand you Plaintiff's Exhibit No. 3 and will
ask you to state, if you know, what that is?
'The
Witness: It is an application for an Order to Sell at Private
Sale the assets and properties of the Farmers & Traders Bank.
'Q.
That was filed by whom? A. By J. W. Terrill, the Special
Commissioner.
'Q.
Was the sale completed after this application and order were
made, as shown by Plaintiff's Exhibit No. 3? A. The sale
was made. The application was approved by the Court.
'Q.
Is the Order of Judge R. A. Breuer attached to this Exhibit
No. 2? A. Yes, sir.
'Q.
To whom was this sale made? A. To myself.
'Q.
Did you receive, as the purchaser, the assets as shown by
this application or order of sale granted by the Court of
Gasconade County? A. I did.
'Q.
I will ask you if you will take this Exhibit No. 3 and see if
you can find the note involved in this case listed in that
application and order of sale? A. In this application is the
note listed, DeWitt C. Terrill, 5-5-32, $ 1252.25 balance.
'Q.
Is that Plaintiff's Exhibit No. 1 in this case? A. Yes,
sir.
'Q.
What is the reason for the difference between the original
amount listed in this order of sale and the amount of that
note? A. By reason of the credits on the back.
'Q.
Are those the credits you testified about? A. Yes, sir.
'Q.
After this application was filed and the order of sale made,
was anything further done between J. W. Terrill and yourself
regarding the transfer of this Exhibit No. 1? A. I paid to
Mr. Terrill a sum of money specified in that bill of sale.
'Q.
What was that sum? A. $ 1700.00, and Mr. Terrill endorsed the
note to me.
'Q.
Is that endorsement on this note as it was at the time he was
in charge of the bank? The bank which failed? A. Yes, sir.
'Q.
Did you receive this Exhibit No. 1 from Mr. Terrill? A. Yes,
sir.
'Q.
And is this the note you sold to Mr. Neidert, the plaintiff?
A. Yes, sir.
'Q.
Did you deliver it by endorsing it and delivering it to Mr.
Neidert? A. Yes, sir.'
The
clerk of the circuit court of Gasconade County (the county in
which Bland was situated) identified an inventory of the
resources and liabilities of the Farmers
& Traders Bank of Bland prepared by the Commissioner of
Finance and filed July 1, 1933. In this statement was listed
Note No. 10151 made by defendant dated 5/5/32, payable on
demand in the amount of $ 1750.00. This report was signed
'John W. Terrill, Special Deputy Commissioner of
Finance'. Plaintiff then identified an application for an
order to sell at private sale all the assets of the Farmers & Traders Bank, and attached to the application was a list of
all the remaining assets of the bank. It was filed in his
office on August 8, 1937 by John W. Terrill, Special Deputy
Commissioner of Finance in charge of the Farmers & Traders
Bank. It recited in part:
'To the Honorable R. A. Breuer, Judge of the Thirty
Second Judicial Circuit.
'Now comes John W. Terrill, Special Deputy Commissioner
of Finance, in charge of the business and affairs of the
Farmers & Traders Bank, Bland, Mo., and prays the Honorable
Judge R. A. Breuer of the Thirty Second Judicial District in
Missouri for an order to sell all of the assets and
properties held and belonging to the said Farmers & Traders
Bank, Bland, Mo. at private sale to H. D. Neese, of Bland,
Mo., at and for the sum and price of Seventeen Hundred and
no/100 dollars, and that said court make an order to such
effect.
Respectfully submitted,
(signed) John W. Terrill,
Special Deputy Commissioner of Finance in charge of the
Business and Affairs of the Farmers & Traders Bank, Bland,
Mo.'
In this
list was the note of DeWitt C. Terrill, No. 10151, dated
5/5/1932, showing a balance due of $...
