Padgett v. Bank of Mountain View

• Decision Date: 07 February 1910
• Citation: 125 S.W. 219,141 Mo. App. 374
• Parties: PADGETT v. BANK OF MOUNTAIN VIEW.
• Court: Missouri Court of Appeals

125 S.W. 219

141 Mo. App. 374

PADGETT v. BANK OF MOUNTAIN VIEW.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. TRIAL (§ 251) — ISSUES — INSTRUCTIONS.

Where the petition charged one with fraud in inducing the maker of notes to refrain from paying them, for the purpose of allowing a deed of trust to be foreclosed, an instruction on the theory that his acts amounted to a conversion of the notes was properly refused because inapplicable to the issues.

2. BANKS AND BANKING (§ 119) — RELATION BETWEEN BANK AND DEPOSITOR.

Ordinarily the relation between a bank and its depositor is that of debtor and creditor.

3. BANKS AND BANKING (§ 134) — RELATION BETWEEN BANK AND DEPOSITOR — SET-OFF.

A bank, holding a matured obligation of a depositor, may use the money on deposit to pay the obligation during the lifetime of the depositor, but the death of the depositor closes the accounts, and while the bank may strike the balance as of the date of the depositor's death, and may credit any money then on deposit on any obligation which it then holds against the depositor, it may not take into consideration any items accruing to the estate after the depositor's death.

4. BANKS AND BANKING (§ 134) — RELATION BETWEEN BANK AND DEPOSITOR — SET-OFF.

Where money was paid into a bank after the death of the person entitled thereto, or where the money on deposit prior to his death did not become payable to him until after his death, the money was not received by him, but was an asset accruing to the administrator, and the bank could not use the money to pay an obligation which it held against the estate, but it must turn over the money to the administrator and probate its claim against the estate, though such person in his lifetime directed that part of the money, when collected, should be credited on such obligation.

5. BANKS AND BANKING (§ 154) — DEPOSITS — LIABILITY.

Where a bank received money for the benefit of a depositor, it must show a proper disposition thereof, and the depositor's administrator, suing for the money, need not, in addition to proving that the bank received the money, also prove that it converted the money to its own use or applied it wrongfully.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Grace Padgett, administratrix of P. L. Padgett, against the Bank of Mountain View. From a judgment for defendant, plaintiff appeals. Affirmed in part, and reversed and remanded in part.

The petition in this case contains four counts. In the first count it is alleged that defendant received $50 on deposit from the deceased, P. L. Padgett, on the 29th day of January, 1908, and has converted the same to its own use. In the second count it is alleged that a deposit of $90 was made by one Roark, one-half of which was to be paid to the deceased, Padgett, when payment was due on the 7th day of March, 1908, and payment has been refused of this amount. In the third count it is alleged that deceased, Padgett, as a real estate broker, had sold some land for one A. M. Winner to one Thomas Showers, and that out of deferred payments on said land Padgett was entitled to a commission. That Showers had executed notes to Winner. These notes were left with defendant bank and were paid after the death of Padgett, and, when paid, Winner had directed the payments of two sums of $50 each to Padgett; that only one had been credited to the estate, and demands judgment for the other $50. In the fourth count it is alleged that in the lifetime of Padgett he sold some land to one L. M. Vaughn, and he and Vaughn entered into a written contract by which it was agreed that Vaughn was to make payments upon such lands as follows: $60 payable on the 15th day of October, 1907; 13 other notes for $50 each, payable at intervals of 3 months apart, all of which were to bear interest from July 15, 1907. That after the death of Padgett, the bank received 12 of these notes for collection. That it did collect one note of $50 and has refused to account for the same, and that, as to the other notes, the bank had conspired with one W. M. Robbins, and had induced Vaughn to refrain from paying the other notes with the fraudulent purpose of allowing a deed of trust then on the land to be foreclosed,...