Pile v. Bank of Flemington

• Decision Date: 01 February 1915
• Docket Number: No. 11332.,11332.
• Parties: PILE v. BANK OF FLEMINGTON.
• Court: Missouri Court of Appeals

173 S.W. 50

PILE v. BANK OF FLEMINGTON.

No. 11332.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

Action by T. L. Pile against the Bank of Flemington. Judgment for plaintiff, and defendant appeals. Affirmed.

L. Cunningham and G. C. Burnside, both of Bolivar, and W. S. Jackson, of Warsaw, for appellant. F. Marion Wilson, of Hermitage, Henry P. Lay, of Warsaw, and Rechow & Pufahl, of Bolivar, for respondent.

TRIMBLE, J.

The plaintiff sued the defendant bank for money had and received.

For a number of years prior to the event out of which this controversy arose, one John W. Pitts had been engaged in buying cattle and shipping them to Kansas City for sale on the market. In buying cattle he would give his check on the defendant bank, noting on the check what it was for. The bank would pay the check whether he had money on deposit to meet it or not, and when the cattle were sold on the market in Kansas City the proceeds would be remitted to the defendant bank and placed to Pitts' credit.

On or about October 17, 1913, Pitts bought of the plaintiff Pile 46 head of cattle, and gave the latter a check for $1,875 on the defendant bank, and indorsed on the face thereof a memorandum that it was given for 46 cattle. The sale of the cattle was for cash. There was no agreement that the check was received as absolute payment, so that, until the check was paid, the title to the cattle did not pass. Pile placed the check for collection in his local bank at Crosstimbers, Mo., and it was at once sent to the defendant bank. The cattle were shipped by Pitts to a commission firm in Kansas City, but not to the one he had formerly dealt with. When the cattle were sold on the market by this firm, the proceeds of the sale, less expenses, were, by mistake, sent to a bank at Bolivar, Mo., instead of to the defendant bank. The amount so sent aggregated $1,694.21. The money for the cattle therefore did not return to the bank of Flemington. Pitts was already overdrawn therein for something over $800, and when the Pile check for $1,875 for 46 head of his cattle came in, or thereafter, the Bank of Flemington refused to pay it and protested it October 23, 1913. The next day the cashier, Hall, wrote a letter to the Bank of Crosstimbers, saying the check was refused for want of funds, but that it was the fault of the firm in Kansas City, and that he was trying to get the returns of the check in, and, if successful, they might be in a position to pay the check soon. The moment Pile learned that payment on the Pitts check to him had been refused, he called Hall, the cashier of the defendant bank, over the telephone, and asked him about the check. Hall replied they had "turned it down." Pile then asked him what had become of the proceeds of his (Pile's) cattle. Hall said the bank had not received them yet. Pile also asked Hall what commission firm in Kansas City sold the cattle. Hall, knowing that Pitts always shipped cattle to the Cooper Commission Company for sale on the market, gave him the name of that company. As stated before, however, the cattle had not been shipped to this company, and were in fact shipped to the Crider Commission Company.

This conversation between Pile and the cashier over the telephone occurred on or about October 27th. Thereafter, about October 30th, Hall, the cashier, went to Kansas City and was met at the depot by Pitts. By him Hall was again told that the cattle were bought of Pile and the number of head bought. This was after nightfall, and the next morning they went together to the office of the Crider Commission Company to ascertain what had become of the proceeds of the cattle. There they learned that the commission company had by mistake sent the proceeds to the Bank of Bolivar instead of to the Bank of Flemington, and that the money was in the Bolivar bank to the credit of Pitts. The commission company suggested that the mistake be corrected by transferring the funds from that bank to the proper bank by a check or draft thereon. This suggestion was adopted and a check was prepared and made payable to Hall, cashier, and delivered to him.

In this way the defendant bank, through its cashier, Hall, received the proceeds of plaintiff's cattle, and did so knowing they were such proceeds, having been informed of that by both Pile and Pitts. Hall applied these proceeds to the payment of Pitts' overdraft of $805.18 in the defendant bank, and to the payment of one or two small checks given by Pitts to others, and this left $758.87. Shortly thereafter Pile appeared at the bank with the protested $1,875 check which he had obtained from the Crosstimbers bank, and the cashier turned over to Pile the above-mentioned $758.87 to apply on the $1,875 due him for his cattle, although no check of any kind was delivered to Hall or the bank as authority therefor. This fact, of itself, would seem to show that...