New First Nat. Bank v. C. L. Rhodes Produce Co.

• Decision Date: 18 February 1933
• Docket Number: 31344
• Citation: 58 S.W.2d 742,332 Mo. 163
• Parties: New First National Bank, a Corporation, S. O. Pottorff, Receiver, Appellants, v. C. L. Rhodes Produce Company, a Corporation
• Court: Missouri Supreme Court

58 S.W.2d 742

332 Mo. 163

New First National Bank, a Corporation, S. O. Pottorff, Receiver, Appellants, v. C. L. Rhodes Produce Company, a Corporation

No. 31344

Supreme Court of Missouri

February 18, 1933

Appeal from Greene Circuit Court; Hon. John Schmook, Judge.

Affirmed.

Frank B. Williams and A. P. Stone, Jr., for appellants.

(1) A pleading may be amended, "at any time before final judgment," to conform to the evidence, "when such amendment does not change substantially the claim or defense." Sec. 1274, R. S. 1919; Schwab Clothing Co v. Railway Co., 71 Mo.App. 241; Kerr v. Bell, 44 Mo. 124; Whiting v. Land and Sheep Co., 265 Mo 382; Reifschneider v. Beck, 148 Mo.App. 725; Wehmeier v. Yontz, 215 Mo.App. 246. (a) The amount for which judgment is prayed, may be amended. Sprague v Follett, 90 Mo. 547; Worthington Live Stock Co. v. Coal Co., 169 Mo.App. 230. (b) An amended pleading, which is complete in itself, and does not refer to, or adopt, the prior pleading supersedes it; and, the original pleading ceases to be a part of the record, being in effect abandoned or withdrawn, and becoming functus officio, subsequent proceeding in the case being regarded as based on the amended pleading. Ross v. Mineral Land Co., 162 Mo. 329, 62 S.W. 984; State ex rel. Johnson v. Hiller, 295 S.W. 133; Westinghouse Electric Co. v. Tweedle, 240 S.W. 864; Von Eime v. Fuchs, 8 S.W.2d 826. (2) This cause should be transferred to the Supreme Court of Missouri, since the amount "in controversy" by which the jurisdiction of the appellate court is determined, is $ 7,950, the amount claimed by plaintiffs in their amended petition. Const. of Mo., Art. VI, Sec. 12, and Amend. of 1884, sec. 5; Sec. 2418, R. S. 1919; Washer v. Bullitt County, 101 U.S. 558, 28 L.Ed. 250; Journal and Tribune Co. v. United States, 254 U.S. 584, 41 S.Ct. 202; State v. Reynolds, 213 S.W. 806; Hennessy v. Bavarian Brewing Co., 145 Mo. 116; State ex rel. v. Rombauer, 130 Mo. 290. (3) Straight bills of lading, such as these here involved, represent the goods named therein, and the transfer or indorsement of straight bills of lading transfers the title and right of possession, subject to existing equities, as effectually as does physical delivery of the goods. Hinrichs, Inc., v. Standard Trust & Sav. Bank, 279 F. 386; Conard v. A. Ins. Co., 1 Peters, 445, 7 L.Ed. 215; Davenport Natl. Bank v. Homeyer, 45 Mo. 149; Dickson v. Merchants Elevator Co., 44 Mo.App. 503. (a) Where the consignee in straight bills of lading for interstate shipment obtains a loan on security of the shipment, delivering to the bank his drafts on the vendee for the amount of the loan, the legal title to said indorsed bills and the goods they represent, passes to the bank, and is not divested unless and until the drafts be paid. Hinrichs, Inc., v. Standard Trust & Sav. Bank, 279 F. 389; Means v. Bank of Randall, 146 U.S. 620, 36 L.Ed. 1107, 13 S.Ct. 189; Dows v. Natl. Ex. Bank of Milwaukee, 1 Otto, 618, 23 L.Ed. 218. (b) The word "non-negotiable" stamped on a bill of lading does not destroy its assignability. Midland Natl. Bank v. Ry. Co., 62 Mo.App. 539. (4) Drafts or checks placed to a depositor's credit in a bank inure at once to said depositor's benefit. Burton State Bank v. Milling Co., 163 Mo.App. 145; United States v. Martindale, 146 F. 282; Neill v. Rogers Bros. Prod. Co., 23 S.E. 706. (5) A wrongdoer can confer no rights upon himself, or those in privity with him, by his own fraud or abuse of trust. Smith v. Jefferson Bank, 120 Mo.App. 543; McLaren v. Brewer, 31 Me. 405. (6) A check constitutes payment only when it is accepted as such, and the money is received thereon. Rock Island Flour Co. v. Perry, 20 S.W.2d 957; Coffman v. Fleming, 301 Mo. 319; Lewis v. McMahan, 307 Mo. 566; Maxwell v. Durham, 222 Mo.App. 199. (a) A bank cashier ordinarily has no power to discharge a debtor without payment, or to surrender or release the bank's securities, claims or assets. Central States Bank v. Hanson, 197 N.W. 284; 3 R. C. L. sec. 75, pp. 444, 448; Daviess Co. Sav. Assn. v. Sailor, 63 Mo. 27; Hodiamont Bank v. Franklin, 215 S.W. 505; People's Sav. Bank v. Hughes, 62 Mo.App. 581. (7) Defendant company having received money belonging to plaintiff bank, with knowledge of said ownership at the time, plaintiff is entitled to maintain action against defendant for money had and received, and to recover to the extent of the amount so received by defendant. Pile v. Bank of Flemington, 187 Mo.App. 61; Leonard v. Martin, 192 Mo.App. 352; Ballard v. First Natl. Bank, 195 S.W. 561; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558; Stout v. Caruthersville Hardware Co., 131 Mo.App. 529; Montgomery v. Wise, 138 Mo.App. 187. Delivery of a bill of lading by a vendor to the purchaser estops him from claiming the property or the proceeds thereof from a bona fide indorsee for value. Johnson-Brinkman Co. v. Central Bank, 116 Mo. 573; Third Natl. Bank v. Smith, 107 Mo.App. 190; Munroe v. Phil. Warehouse Co., 75 F. 547.

W. D. Tatlow for respondent.

(1) "From the earliest history of jurisprudence in this State to the present time, this court has not only recognized the right, but declared it to be the duty of the circuit judge to correct his own errors committed in the conduct of a cause tried before him." Ewart v. Peniston, 233 Mo. 695, 136 S.W. 425. No term bill of exceptions was necessary to enable the court to correct its error in allowing the amended petition to be filed. (2) When the court struck out the amended petition which it had inadvertently permitted the plaintiff to file before the evidence was reported by the referee, to conform to the evidence, and when on the incoming of the evidence, it clearly appeared to the court, that it did not conform to the evidence taken, but entirely changed the cause of action, the order striking out the petition was in substance and effect to set aside and re-call the order granting the plaintiff leave to file the amended petition. It left the record in exactly the position, as if the court had refused to permit the filing of the amended petition in the first instance. An amended petition which was properly rejected by the trial court cannot be looked to, to determine the amount involved for the purpose of an appeal. 3 C. J. pp. 422, 423, sec. 237; Culley v. Louisville, etc., Railroad Co., 101 Ky. 319. (3) If this court should hold that the trial court erred, in striking out the amended petition, the case would have to be remanded for trial on the issues to be made thereto. "What that jurisdiction may be upon a new trial, held in conformity with the mandate of the Court of Appeals, as evidenced by its opinion herein is not a matter pertinent to this review" and does not give the Supreme Court jurisdiction to review this appeal. State v. Reynolds, 213 S.W. 805; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 570. The delivery of the bills of lading with drafts attached, the bills of lading being non-negotiable, passed the title subject to the existing equities of the C. L. Rhodes Produce Company; that is its right to reclaim its property, if the purchase money was not paid according to the terms of the sale. Leonard v. Martin, 214 S.W. 968.

OPINION

Atwood, J.

This case was transferred by the Springfield Court of Appeals to the Supreme Court on the ground that the amount in dispute is in excess of $ 7500.00 thus bringing the appeal within the jurisdiction of the latter court. [37 S.W.2d 986, 225 Mo.App. 438.]

The original petition, filed in the circuit court of Greene County by the New First National Bank before it went into the hands of a receiver, was in two counts. The first count charged that on March 8, 1927, defendant C. L. Rhodes Produce Company, a corporation, deposited with plaintiff bank four checks of John W. Rhodes and Company, each in the sum of $ 2620.00, making a total deposit of $ 10,480.00; that the consideration of these checks was four cars of eggs, shipped from Springfield, Missouri, to Chicago, Illinois, in the name of C. L. Rhodes Produce Company on memorandum bills of lading, to which bank drafts were attached in excess of $ 10480.00; that before said bank drafts were collected defendant stopped delivery of the eggs and afterwards sold and disposed of them and appropriated the proceeds in the sum of $ 10,600.00 to its own use; that when said deposit of $ 10,480.00 was made on March 8, 1927, it was entered as a credit on defendant's account, and defendant thereafter drew checks against said account to the full amount thereof and on April 4, 1927, the account was closed; that all four checks so deposited were dishonored by the drawee bank for insufficient funds, of which fact defendant was duly notified, and subsequently the drawer made two of them good but the remaining two checks were not made good. Judgment was prayed in the sum of $ 5240.00. The second count was for money had and received on March 9, 1927, in the sum of $ 5240.00, for which amount judgment was prayed.

Defendant's answer contained a general denial of the substantive allegations of plaintiff's petition and further pleaded that on March 9, 1927, defendant was the owner of four cars of eggs which it conditionally sold to John W. Rhodes and Company; that in payment therefor John W. Rhodes and Company gave defendant four checks for $ 2620.00 each on plaintiff bank, and in order to meet said checks deposited four drafts with bills of lading attached in plaintiff bank and received credit therefor; that plaintiff knew said checks were given for the purchase price of said eggs; that after giving defendant credit on its account for all four of said checks plaintiff bank claimed the right to charge defendant's account with two of said checks amounting to $ 5240.00 unless said John W. Rhodes and Company...