Proctor v. Home Trust Co.

CourtCourt of Appeal of Missouri (US)
Citation284 S.W. 156
Docket NumberNo. 15584.,15584.
PartiesPROCTOR v. HOME TRUST CO.
Decision Date03 May 1926

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Charles 0. Proctor against the Home Trust Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Marley & Reed, of Kansas City, for appellant.

Moore & Johnson, of Kansas City, for respondent.

ARNOLD, J.

This is an action in conversion. The facts shown are that plaintiff is a resident of Westport, a part of the city of Kansas City, and defendant is a corporation engaged in the banking business in Kansas City, Mo.

In February, 1922, one Curtis M. Amos, purchased a garage from Ernest Augustine, and in payment therefor Amos and his wife, Margaret, executed their promissory note in the sum of $1,129, dated February 14, 1922, payable in monthly installments of $150 each, beginning August 15, 1922, with 6 per cent. interest on the unpaid balance. In order 4to make the deal, Mr. Augustine had to have the money which the makers of the note did not have. Plaintiff herein was solicited to buy the note, but was unwilling to do so unless it was secured in some way, as it was considered by him to be worthless without security. It was agreed that, if plaintiff would buy the note, a note for $7,000 dated March 4, 1920, payable in monthly installments of $150 at 6 per cent., would be put up as collateral. This note, payable to Curtis M. Amos and Margaret Amos, or order, executed by Agnes Smith, was accepted by plaintiff as collateral security for the $1,129 note. The $7,000 note was about half paid at the time of the purchase of the $1,129 note by plaintiff and was subject to a prior lien of approximately $700 in favor of the Central Exchange Bank of Kansas City, Mo. Thereafter the Central Exchange Bank was taken over by defendant herein.

Plaintiff testified that Mr. Amos took him to the Central Exchange Bank and introduced him to Mr. Honan, cashier of said bank, and that Mr. Amos told Honan what was wanted, to the effect that the note for $1,129 was to be left with the bank for collection, to the end that, when the payments made on the $7,000 note had extinguished the indebtedness of Amos and his wife to the bank, the payments made thereon were to be applied to the payment of the $1,129 note; that plaintiff and Amos talked to Honan, who agreed to the arrangement, and accepted the $1,129 note, giving plaintiff a receipt therefor as follows:

                                           "February 24, 1922
                "Received of C. O. Proctor note dated February
                14, 1922, signed by Curtis Amos and Margaret
                Amos, amount $1,129.00 for collection and
                credit. Central Exchange National Bank, Kansas
                City, Missouri, by H. C. Honan, Cashier
                   "Nathan Rieger
                   "O. K. Home Trust Co
                      "By Sievers (?)
                       "Collect and credit a/c O. C. Proctor."
                

H. C. Honan, testifying for plaintiff, stated that in February, 1922, he was cashier of the Central Exchange Bank; that he recalled the conversation with plaintiff relative to the two notes in question; that plaintiff said he wanted to leave the $1,129 note with the bank, "the arrangement being that, after the indebtedness had been paid to the Central Exchange Bank, if any payments might be made by Amos, such payments would be indorsed on the $1,129 note" of plaintiff and placed to plaintiff's credit in the bank. The witness testified that the indebtedness of Amos to the bank was eventually paid; that he does not remember whether the $700 indebtedness was all paid off at the time of the merger of said bank with the Home Trust Company; that Mrs. Margaret Amos came to the bank to borrow some more money; that on account of having talked to plaintiff before about the matter, he suggested to Mrs. Amos that it would be well to get in touch with him; this witness called plaintiff by telephone and plaintiff said it would be satisfactory to him to make Mrs. Amos the additional loan to the amount of $300, which was done.

On this point, plaintiff testified that, in the telephone conversation which was with Honan, he told Honan that, if the amount of the additional loan to Mrs. Amos did not reduce the unpaid balance of the collateral note to a point under $300 in excess of the $1,129 note, it was all right with him. The testimony shows that, at the time the additional loan of $300 was made to Mrs. Amos, Mr. Amos was ill in a hospital and that he died soon thereafter.

It is admitted that the bank in question was consolidated with the Home Trust Company, though the date of such consolidation is not shown in the record. Plaintiff testified that he saw in a daily paper that the Home Trust Company had taken over the Central Exchange Bank and that he went to the trust company and there learned that the consolidation had occurred; that on inquiry one of the directors was pointed out to him; that he talked to the individual designated and the following occurred:

"I told him I had an account up there and asked him if they had it down there, and he said, `Yes;' they had it there, and lots of people were coming and going, and he went back and came back, and he said, 1600;' and I told him that was all right; and I told him I had a note there for collection, Agnes Smith note; she is paying Mr. and Mrs. Amos; and he hunted it up, and it was in the same envelope, and showed them to me; and they said they would do anything the Central Exchange would do; and I said `All right; I'll leave it here for collection;' and I says, `Give me a receipt for it.' I showed him that [indicating]. He fixed up a piece of paper, and started to write one, and then he crumpled one, and then he said, `We will do anything the Central Exchange agreed to do,' and recrumpled it, and threw it in the wastebasket, and put his name down here."

The statement "and put his name down here" obviously refers to the 0. K. subtended to the receipt above quoted. Witness did not know Mr. Nathan Rieger personally. The signature of Mr. Rieger to the O. K. is admitted. Plaintiff stated that the man who put the O. K. on the receipt is the one with whom he talked on that occasion and does not know whether it was Rieger; but that another man in the bank put the O. K. there; that the person with whom plaintiff talked said he would do anything the Central Exchange Bank would do; that he went back to the Home Trust Company in a week or 10 days and again saw the man with whom he had talked and that man went to the files and found both the notes in question were in the same envelope; that plaintiff then told him to collect and deposit the proceeds to plaintiff's account and that the man said he would do anything the Central Exchange Bank would do; that witness went back a second time and again was shown the envelope which contained both notes; that Mr. Rieger was the man with whom he talked all the time; and that Rieger said he would collect the Agnes Smith note and credit the same to plaintiff's account. Plaintiff waited about a month and, not receiving word of any collections or credits, again went to the Home Trust Company and talked with the same man; that the man went back to the cage a third time and then saw that the note securing the Augustine note was gone; that the man asked a woman clerk what had become of it and she searched and could not find it; that the man pressed her to know what had become of it, and she said she had given it to Mrs. Amos. Thereupon plaintiff procured an attorney. Later he went to the bank with his attorney, and at that time the woman clerk repeated she had given the collateral note to Mrs. Amos; that Mrs. Amos had asked for it. Plaintiff stated he had no notice prior to the time he went and asked for the note.

T. A. Frank Jones, attorney for plaintiff, testified that, after the discovery that the Home Trust Company had turned over the collateral note signed by Agnes Smith and which had been left by plaintiff at the bank for collection, he went to the Home Trust Company and made formal demand that both the collateral note and the note for $1,129 be returned to plaintiff; that he went to an officer of the bank and told him that he came on plaintiff's behalf to make formal demand for the collateral note which the bank held as security for the $1,129 note; that the officer went to the cage where a woman was performing the duties of collection teller; that the bank officer asked her about the Proctor note and she produced some papers out of an envelope, among which was the $1,129 note; witness then stated it was not that note but the collateral note he came to demand; and that the answer of said officer or the woman clerk, or both, was that they had no such note, knew nothing about it, and had no collateral note to return. This suit followed.

At the close of plaintiff's case the defendant asked and the court refused a peremptory instruction to find for defendant. Defendant then introduced Mrs. Margaret Amos as a witness. She testified that she owned the Lee Hotel in Kansas City, Mo., and had run it and then sold it to Agnes Smith; that no one was associated with her in this hotel; that she took the $7,000 note in question as part payment for the purchase price of the hotel. On direct examination, the following occurred:

"Q. I notice the note reads, `Curtis M. Amos and Margaret Amos.' What, if any, interest did your husband have in the hotel?

"Mr. Moore: We object to that. The note speaks for itself. It would be immaterial — wait, we object to that for the further reason that it calls for a conclusion of the witness.

"The Court: Yes, sir; it will be sustained."

Exception to this ruling was noted and again the witness was interrogated as follows:

"Q. Now, I notice that the note is made to Curtis M. Amos and Margaret Amos? Why was it made that way?

"Mr. Moore: We object to that. The note speaks for itself. It calls for a conclusion of the witness.

"The Court: Sustained. If she knows about the transaction she...

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13 cases
  • Henneke v. Gasconade Power Co.
    • United States
    • Court of Appeals of Kansas
    • 26 Mayo 1941
    ...... meaning, and such circumstances could be shown by parol. evidence. Proctor v. Home Trust Co., 284 S.W. 156;. Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25; ......
  • Henneke v. Gasconade Power Co.
    • United States
    • Court of Appeal of Missouri (US)
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    ......Proctor v. Home Trust Co., 284 S.W. 156; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25; Arnoldia v. ......
  • Bonuso v. Shroyer Loan & Finance Co. Inc.
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    ......Loeb, 255 Ill.App. 484; Peterson v. Swanson, 176 Minn. 246, 223 N.W. 287; Proctor v. Home Trust Co., 221 Mo.App. 577, 284 S.W. 156; Brown v. Janes, 71 Misc. 316, 130 N.Y.S. 333; ......
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    • 30 Marzo 1982
    ......Mutual Protective Ins. Co., 9 S.W.2d 685, 688 (Mo.App.1928) and Proctor v. Home Trust Co., 221 Mo.App. 577, 284 S.W. 156, 160 (1926); but in light of the mandatory nature ......
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