New York Indem. Co. v. Farmers' Trust Co.

• Decision Date: 13 June 1932
• Citation: 51 S.W.2d 201,227 Mo.App. 55
• Parties: NEW YORK INDEMNITY COMPANY, APPELLANT, v. FARMERS TRUST CO. ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

51 S.W.2d 201

227 Mo.App. 55

NEW YORK INDEMNITY COMPANY, APPELLANT, v. FARMERS TRUST CO. ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

June 13, 1932

Appeal from the Circuit Court of Nodaway County.--Hon. D. D. Reeves Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Culver Phillip & Voorhees for appellant.

Shinabarger Blagg & Livengood for respondent.

TRIMBLE, P. J. Bland, J., concurs; Arnold, J., absent.

OPINION

TRIMBLE, P.

J.--The petition in this action is in four counts and seeks to have established as preferred claims against the Farmers Trust Company (a corporation which closed its doors and went into the hands of the State Finance Commissioner on April 7, 1930), four separate claims based on as many checks drawn on said Trust Company in favor of and owned by the Union Credit Corporation, which the Trust Company accepted and paid out of moneys on deposit to the credit of the drawer of said check but in no instance was the money on said checks paid to the Union Credit Corporation owner of and entitled to the same.

The first count was based on a check dated December 22, 1929, for $ 230 drawn on said Trust Company by the Windsor Chevrolet Company in favor of the Union Credit Corporation and delivered by the payor to one George Pickard for the payee, which the Trust Company accepted, marked "paid" and charged to the account of said Chevrolet Company (which had to its credit a sum in excess of said check), and, without authority by said Union Credit Corporation or of anyone authorized to act for it, did thereby accept and collect said check out of the deposit of the drawer and, by reason of the facts, wrongfully and unlawfully converted the same to its own use and thereafter paid $ 130 thereof to the owner Union Credit Corporation, but, without authority, paid $ 100 to said Pickard, who at the time was in the employ of said Union Credit Corporation but had no authority to endorse the name of the payee upon any checks payable to it; that said Pickard never paid said sum or any part thereof to said Union Credit Corporation. The count further stated that plaintiff was the surety upon a bond executed by Pickard to the Union Credit Corporation for the faithful performance of his duty and for the payment of all moneys coming into his hands belonging to said Union Credit Corporation and for the delivery of all checks payable to the order of the Union Credit Corporation coming into his hands; that by reason of Pickard's failure to deliver said check to said Union Credit Corporation, and his embezzlement of said sum of $ 100, plaintiff, as surety on said bond, had become subrogated to the rights of said Union Credit Corporation against said Farmers Trust Company and the said Union Credit Corporation had assigned its rights to recover against said Trust Company; and that the Finance Commissioner had received into his hands and now has in his hands, a sum largely in excess of said sum; that said Commissioner of Finance on the 31st day of October, 1930, allowed said claim as a common claim but refused to allow it as a preferred claim against the assets of the said Farmers Trust Company. Wherefore, plaintiff prayed judgment against defendant in the sum of $ 100 and that it be declared a preferred claim.

The second count was based on a similar check dated November 6, 1929, for $ 120.15, from the Windsor Chevrolet Company to the Union Credit Corporation, delivered to George Pickard for said corporation, which the said Pickard, likewise without any authority, endorsed and delivered to said Trust Company, which had on deposit a sum in excess of the amount of said check, and which the said Trust Company likewise unlawfully converted to its own use, stamped the check "paid," charged the amount thereof to the Chevrolet Company, and without authority, said Trust Company accepted and collected said check out of money on deposit to the credit of the drawer; that said check was of the value of $ 120.15, and by reason of the facts, defendant unlawfully converted the same to its own use and did have and receive for the benefit of the Union Credit Corporation the proceeds, to-wit, $ 120.15 and paid the same, without authority, to said Pickard who never paid the same to the Union Credit Corporation. Then follow the same allegations as in first count as to plaintiff being a surety on Pickard's bond to said Credit Corporation and assignee of and subrogated to its rights against the Farmers Trust Company and to collect from it the said sum of $ 120.15 now sought as a preferred claim.

The third count made the same allegations as the second count except that the third count is based on a check dated January 15, 1930, for $ 93.47 drawn by the Chevrolet Company to the Union Credit Corporation.

The fourth count contains the same allegations as in the other counts, save that the check in this count is dated January 15, 1930, and is for $ 459.

Contained in each of the four counts are allegations that the Farmers Trust Company went into the hands of the State Finance Commissioner April 7, 1930; that the last day for filing claims against the Trust Company before the commissioner was September 25, 1930, and before that date, to-wit, on July 11, 1930, plaintiff filed its said claims, duly verified with the commissioner who on October 31, 1930, allowed them as common claims but rejected them as preferred. The suit was filed December 6, 1930.

The answer of defendant was a general denial. The court, after hearing the evidence, rendered judgment on the first count for $ 100, on the second for $ 120.15, on the third for $ 93.17...