Where a factor keeps the funds arising from his business, as such, separate from his individual funds, by depositing in bank to a separate ““brokerage account” the drafts received for goods sold for his customers, that these drafts include his commissions on such sales, is not such a mingling of his own with the trust-fund as will prevent the owner of the goods sold from following the fund, nor such as will enable the factor's general creditors to reach it by attachment.
APPEAL from the St. Louis Circuit Court, ADAMS, J.
Affirmed.
E. B. SHERZER, for the appellants: The right to follow the proceeds of sales made by a broker depends upon the power of identification.-- Mills v. Post, 7 Mo. App. 519; Chase v. Alexander, 6 Mo. App. 509.
BROADHEAD, SLAYBACK & HAEUSSLER, for the respondents: That an indebtedness may be liable to garnishment, it must be shown to be due as a money demand, unaffected by liens, prior encumbrances, or conditions of contract.-- Weil v. Tyler, 43 Mo. 581; 38 Mo. 545; Scales v. Hotel Co., 37 Mo. 520.
BAKEWELL, J., delivered the opinion of the court.
Appellants recovered judgment against James Post, and summoned the St. Louis National Bank as garnishee. Tiedeman & Co. claimed, by an interplea, that they were entitled to $274.40 of the funds. The Circuit Court found in favor of Tiedeman & Co., and rendered judgment in their favor for the full amount claimed by them, and awarded attorney's fees in favor of the bank against plaintiffs.
The testimony in the case is the evidence of Post himself and of the officers of the bank in which his account was kept. It is entirely uncontradicted, and is to the following effect: James Post was engaged in selling merchandise on commission, under the name of James Post & Co., no other person being represented in that name. He kept an account in the St. Louis National Bank, under the style, “James Post & Co., brokerage account.” He opened the account thus to keep his brokerage account separate from any other. He deposited all the proceeds of sales made for him by other parties to that account. His commissions for making sales, and his expenses incurred for drayage, etc., about the sales, were included in these deposits. He had no other money in the bank. Nothing was deposited to this bank-account but proceeds of sales made for the various parties who employed him. When he found persons who had flour to sell, he would write to his Eastern correspondents and find out what they would pay for it; and if the holders here would take what was offered for it, he would ship it, and draw for the commissions and expenses, and deposit and sell the draft, and out of the proceeds pay the sellers the agreed price. He had drawn out all his commissions, etc., before the garnishment, and never claimed the money left in bank as his own. It belonged to those for whom he had made sales, and would have been handed to them had the bank not been summoned as garnishee. The items of the bank-account were as follows:--
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Of the amounts deposited, the first three items were the proceeds of sales of flour made for various parties. The aggregate of these items is $167.45 The checks of June 21st, 24th, and 25th are the amounts paid to Stinde, and Mauntel, Borgess & Co., for sales of their flour. These checks aggregate $150.94. The difference between these sums is apparently the amount of expenses and commissions for these transactions. It is $16.51. The deposit of $304 is the draft for Tiedeman & Co.'s flour, out of the proceeds of which Post was entitled to $29.60 for commissions and expenses, leaving $274.40 coming to them. The deposit of $474.04 is a draft for sales made for Edgell & Co. Of this amount he paid them $75 on July 16th, drawing then the check for $85, out of which he retained $10 for himself. On the same day he drew checks for his own purposes for $36, making the total of $121 drawn...
