Padgett v. Bank of Mountain View
| Decision Date | 07 February 1910 |
| Parties | GRACE PADGETT, Administratrix, Appellant, v. BANK OF MOUNTAIN VIEW, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
STATEMENT.--The petition in this case contains four counts. In the first count it is alleged that defendant received fifty dollars 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 ninety dollars 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 fifty dollars each to Padgett. That only one had been credited to the estate, and demands judgment for the other fifty dollars.
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:
$ 60.00 payable on the 15th day of October, 1907. 13 other notes for fifty dollars each, payable at intervals of three months apart, all of which were to bear interest from July 15, 1907.
That after the death of Padgett, the bank received twelve 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, and prevent the estate of Padgett from collecting said notes, and that, in consequence thereof, Vaughn was induced to, and did, refuse to pay the other notes and the notes of Vaughn became worthless and were lost to the estate and asks for judgment on this count in the sum of $ 600.
The answer is a general denial as to the first two counts. As to the third count, admits the receipt of the $ 50 as therein alleged, and further alleges that the money was credited on a note held by the bank against Padgett, on which it had been instructed by Padgett during his lifetime, and also by this plaintiff, to credit the money so paid. Answer to the fourth count is a general denial, except that it admits receipt of the notes for collection and alleges that it was agreed that when collected, the money should be applied in payments of notes executed by Padgett and that the $ 50 collected was so applied. Denies the allegation of fraud and alleges due diligence in its effort to collect the notes, and that the failure to collect them was due to Vaughn's insolvency.
The evidence offered by plaintiff tended to prove the facts alleged in each count of its petition. At the close of the testimony the plaintiff asked instructions upon the theory that none of the money received by the bank, after the death of Padgett, could be credited on any obligation of Padgett's to the bank. These were refused, and this is now assigned as error. They also asked instructions, under the fourth count of the petition, upon the theory that the acts of the bank in inducing Vaughn to desist from further payments on his notes amounted to a conversion of the notes. The court modified the instruction and based the ground of recovery, if at all, on the theory of fraud in inducing Vaughn not to pay his obligations. This is now assigned as error. The verdict was for the defendant.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
O. L Haydon and W. P. Campbell for appellant.
(1) A mere power uncoupled with an interest dies with the grantor and the interest that will cause the power to survive the death of the grantor must be an interest or title in the thing, which interest or title is conveyed with the power and not left to be conveyed afterwards with the exercise of the power. Hunt v. Rousmanier, 8 Wheat. (21 U.S.) 174; Gardner v. Bank, 10 L.R.A. 45. (2) Where a bank applies deposits for other purposes than those designated in the contract, it becomes guilty of wrongful conversion. 4 Lawson Rights & Rem., 2913, 2975, secs. 1700, 1736; De Tiltner v. Fuller, 1 Mill. Const. 117, 69 Am. Dec. 616; Stewart v. Davis, 31 Ark. 318, 25 Am. Rep. 574; Wanamaker v. Brown, 36 Md. 42; Northrup v. McGill, 27 Mich. 234; Brinnare v. Stillwagon, 41 Mich. 54; 4 Cyc. 126 note. (3) It was an undisputed fact that the defendant received the money mentioned in the second count of the petition and applied it to its own use, and it was error to submit the same to the jury as an issue of fact. Gaw v. Bingham, 107 S.W. 931. (4) The demands sued on accrued to plaintiff since the death of her intestate, and a debt due defendant from the intestate cannot be used as a set off. Woodward & Thornton v. McGaugh, 8 Mo. 20; Lee's Admr. v. Lee, 21 Mo. 531.
J. P. Swaim and M. E. Morrow for respondent.
(1) There is no principle of law more firmly settled in Missouri than that which holds that the relation between a bank and its depositor is that of debtor and creditor and not bailor and bailee. Knecht v. Savings Institution, 2 Mo.App. 563; Bank v. Tutt, 5 Mo.App. 342; Muench v. Bank, 11 Mo.App. 144; Bank v. Schneidermeyer, 62 Mo.App. 179; Sparrow v. Bank, 103 Mo.App. 338; O'Grady v. Bank, 106 Mo.App. 366; Investment Co. v. Bank, 96 Mo.App. 125; Arnold v. Bank, 100 Mo.App. 474. (2) In suits by administrators, debts against their intestates may be set off by the defendant. Knecht v. Bank, 2 Mo.App. 563; Stiles v. Smith, 55 Mo. 363; Lay v. Bank, 61 Mo. 72; Green v. Conrad, 114 Mo. 651; R. S. 1899, sec. 4489. (3) It was not error to instruct the jury that the burden of proving fraud rested upon him who charges it. Desberger v. Harrington, 28 Mo.App. 632; State ex rel. v. Hope, 102 Mo. 410; Heffernan v. Ragsdale, 199 Mo. 375; Shoes Co. v. Miller, 53 Mo.App. 640; Jackson v. Wood, 88 Mo. 76; Taylor v. Crockett, 123 Mo. 300; Priest v. Way, 87 Mo. 16.
As to the question of conversion of the notes upon which plaintiff sought to...
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