Pemiscot County Bank v. Tower Grove Bank of St. Louis
| Decision Date | 08 June 1920 |
| Parties | PEMISCOT COUNTY BANK, et al., Appellants and Respondents, v. TOWER GROVE BANK OF ST. LOUIS, Appellant and Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted April 12, 1920. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--This action was instituted in the circuit court of the city of St Louis, June 4, 1914, by the Pemiscot County Bank and the Citizens Trust Company, the liquidating agent of that bank, both of Caruthersville, Missouri, against the Tower Grove Bank of St. Louis, to recover the amount of two drafts issued by the Pemiscot County Bank to the order of the Tower Grove Bank, one dated at Caruthersville, Mo., March 10, 1913, drawn on the Security Bank and Trust Company, Memphis, Tenn., for $ 2784.04 and the other dated at Caruthersville, Mo., December 24, 1912, drawn on the National Bank of Commerce, St. Louis, for $ 3060.88, and which drafts plaintiffs allege in their petition, drawn in two counts, A. C. Tindle, cashier of the Pemiscot County Bank, unlawfully and wrongfully issued and converted to his own use, and fraudulently and unlawfully filled out by writing in the name of defendant Tower Grove Bank, and then delivered the drafts to defendants, and plaintiffs prayed judgment against defendant for the amount of the drafts, aggregating $ 5844.72, together with interest from the dates of the drafts and for costs.
Defendant's answer to each count of the petition consists of a general denial, with the further answer to the first count that as to the draft for $ 2784.04, described in the first count, defendant on March 7, 1913, received for value of A. C. Tindle his personal check drawn on the Pemiscot County Bank in favor of defendant for $ 2784.04, and on or about that date, defendant presented the check to the Pemiscot County Bank for payment by mailing the same at the city of St. Louis, to the Pemiscot County Bank at Caruthersville, Mo., with a written request that the Pemiscot County Bank remit defendant a draft for that amount in payment of the check; that on March 13, 1913, defendant received of the Pemiscot County Bank in payment of the check of Tindle a draft drawn by the Pemiscot County Bank on the Security Bank and Trust Company of Memphis, Tenn., for the amount, which draft was thereafter in due course paid to defendant by the Security Bank and Trust Company; further, that defendant held, as security for the payment of this check of Tindle, certain property of Tindle, which defendant surrendered upon the payment to it of the draft. Wherefore defendant claims that plaintiffs are estopped to claim that the draft was fraudulently issued. Defendant's answer further states that the Pemiscot County Bank continued in active banking business for several months after the issuance by it of the draft to defendant, and that Tindle continued to act as its cashier, and that at several times thereafter Tindle had on deposit in plaintiff bank funds greater in amount than the amount of the draft, and if the Pemiscot County Bank had any claim against Tindle on account of the issuance of the draft, it could have satisfied its claim out of the funds of Tindle thus in its possession; that thereafter Tindle became insolvent and was insolvent at the time of the alleged demand by plaintiffs of defendant for payment of the amount of the draft. The answer further states that the check drawn by Tindle on the Pemiscot County Bank to the order of defendant, and presented for payment on March 8, 1913, has been retained by the Pemiscot County Bank, which has accepted the same and is therefore estopped to claim anything on account of the draft issued in payment of the check. The answer further sets up conveyances by Tindle and his wife of certain real estate, which it avers was accepted in full payment and satisfaction of all liability of Tindle to the bank, including the liability, if any, on account of the issuance and delivery of this draft to defendant, and that the bank or its co-defendant had realized a large amount--about $ 70,000--on these assets.
Defendant's answer to the second count of plaintiffs' petition stated that on December 24, 1912, it was the holder for value of the individual check of A. C. Tindle of that date, drawn on the Pemiscot County Bank to the order of one John Schmoll and by him indorsed in blank, dated December 24, 1912, for $ 500, and that it also at that time held a check of the same date drawn by Tindle on the Pemiscot County Bank to the order of defendant for $ 1280.44, and at the same time was the holder for value of a check of the same date drawn on the Pemiscot County Bank to the order of defendant by one W. H. Johnson for $ 1280.44, and that on December 24, 1912, it presented to the Pemiscot County Bank the three checks, aggregating $ 3060.88, for payment, with the request that the checks be paid by a draft drawn by the Pemiscot County Bank to the order of defendant, and that the Pemiscot County Bank then and there accepted these three checks, and in payment thereof delivered to defendant the draft of the Pemiscot County Bank, dated December 24, 1912, drawn on the National Bank of Commerce in St. Louis, to the order of defendant for $ 3060.88. The answer to the second count contains the same additional defenses made in answer to the first count as hereinbefore stated, as to the conveyances by Tindle, except the defense with reference to the collateral security held for the payment of the Tindle check, mentioned in the answer to the first count.
A general denial by way of reply was filed.
The case was tried before the court, a jury having been waived.
The facts appearing from the evidence were, in substance, that in 1912, A. C. Tindle was cashier of the Pemiscot County Bank, at Caruthersville, Mo., and had been in the employ of the bank for about fifteen years and had been its cashier for about seven years; that during 1912 and prior thereto Tindle, who was a stockholder in the Tower Grove Bank, had been an occasional borrower from that bank, either directly on his own note or by discounting notes executed by others; that in November, 1912, the Tower Grove Bank held two notes which had been discounted by it for Tindle.
The cashier of the Tower Grove Bank, called as a witness by plaintiffs, under examination by counsel for plaintiffs testified as to this draft for $ 3060.88, that the Tower Grove Bank had received two notes, one for $ 4007.74, signed by H. Anderson, indorsed by the Concord Mercantile Company, the other for $ 322.40, signed by W. M. Baker, indorsed by the Concord Mercantile Company, and that it was part settlement of these notes that this draft was issued. The witness further testified, in answer to a question from the court, that the name of Tindle did not appear anywhere on these notes. Asked by counsel for plaintiffs if he knew Tindle personally, he said "Yes;" and asked if he knew that Tindle was a partner in the firm doing business as the Concord Mercantile Company, he answered "No." Witness further testified that these two notes were indorsed in blank and Tindle sold them to the Tower Grove Bank. "They may have been indorsed by Tindle," said witness, "but the records of the Tower Grove Bank did not show that they were." The defendant bank bought these notes on February 15, 1912, and one of them became due December 20, 1912, the other December 11, 1912, and the bank had made demand on Tindle for the payment of the notes. These notes had been discounted in the defendant Bank by Tindle. Asked that if Tindle had not then told him that he was a partner in the Concord Mercantile Company, and if he had not accepted the notes on the strength of the fact that he was a partner in that company, witness answered that he did not remember that Tindle had told him that; and he repeated that he did not think that he knew at the time that Tindle was a partner in that concern; that all the transactions about these notes were between himself and Tindle. Witness said he had stated that Tindle had in all probability indorsed these notes, but the records of the bank do not show that. Tindle received the money on these notes, that is on the Baker and Anderson notes, indorsed by the Concord Mercantile Company, to which company they were payable. Witness further testified that along in November, the Pemiscot County Bank, through Tindle, its cashier, wrote to the Tower Grove Bank, asking that these notes, then about to mature, be sent to Caruthersville for payment. The defendant bank thereupon sent these notes to its correspondent at Caruthersville (not the Pemiscot County Bank) for collection. It was in evidence that the Concord Mercantile Company, the holder and indorser of these notes, was a partnership composed of A. C. Tindle, W. H. Johnson and R. F. Coppage. These notes still remaining unpaid on December 22, 1912, Schmoll, the president of defendant bank, went to Caruthersville to see about their collection. Mr. Schmoll got the notes from the local bank to which they had been sent for collection and called at the Pemiscot County Bank on December 23rd. Learning that Tindle was out of town and would return the next day, he called upon J. A. Cunningham, president of the Pemiscot County Bank, at his store near the bank. Schmoll testifies that he told Cunningham of the purpose of his visit to Caruthersville and Cunningham told him that he thought Tindle had money on hand and would be prepared to pay the notes. On the next day, December 24th, Schmoll again called at the Pemiscot County Bank and saw Tindle, who stated that he was prepared to pay his share,...
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