Ripley National Bank v. Connecticut Mutual Life Insurance Co.

• Decision Date: 22 June 1898
• Citation: 47 S.W. 1,145 Mo. 142
• Parties: Ripley National Bank v. Connecticut Mutual Life Insurance Company et al.; Sibert, Appellant
• Court: Missouri Supreme Court

47 S.W. 1

145 Mo. 142

Ripley National Bank v. Connecticut Mutual Life Insurance Company et al.; Sibert, Appellant

Supreme Court of Missouri, First Division

June 22, 1898

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

John Cashman and W. S. Shirk for appellant.

(1) The entire evidence taken together proves the agency that estops the plaintiff from now denying payment of the debt. Gibson v. Zeibig, 24 Mo.App. 65; Franklin v Ins. Co., 52 Mo. 461; Brooks v. Jamison, 55 Mo 512; Edwards v. Thompson, 66 Mo. 482; Mitchum v Dunlap, 98 Mo. 418; Hull v. Jones, 69 Mo. 587; Wheeler v. Mfg. Co., 23 Mo.App. 190; Greeley-Burnham Grocer Co. v. Capen, 23 Mo.App. 306; Gibson v. Zeibig, 24 Mo.App. 67; Woolen Mills v. Meyers & Co., 43 Mo.App. 124; Flint-Walling Mfg. Co. v. Ball, 43 Mo.App. 505; Sharp v. Knox, 48 Mo.App. 169; Hoppe v. Saylor, 53 Mo.App. 4; Lumber Co. v. Ballentine, Foster & Co., 54 Mo.App. 172. When an agency is shown to exist, the presumption would be that the agent's authority was general rather than limited. Sharp v. Knox, 48 App. 169. (2) If the debt is paid, then the release follows as a matter of right. R. S. 1889, sec. 7095; Verges v. Gibney, 47 Mo. 171. (3) The doctrine of estoppel does not apply in this case as against the defendant M. H. Sibert. No man can set up another's act or conduct as the ground of an estoppel, unless he has been misled or deceived thereby. In this case Mr. Galbreath had declared his intention to have nothing to do with the deposit created by the collection of the debt due the plaintiff. The evidence shows that Mr. Sibert only accepted the certificate after being urged by the receiver to accept the same so as to save the money to some one, and after Mr. Galbreath had refused to further recognize his then wrecked, but longtrusted depository. The placing the certificate with other paper in the Bank of Commerce did not change the right to ownership in the plaintiff. It being once stamped with the indicia of a trust relation, this relation followed it through all its course, and Mr. Sibert will be compelled to account for it, as trustee, no matter the manner of his dealings with it. No harm having been done to plaintiff by any act of Mr. Sibert, and plaintiff now being tendered the proceeds of the deposit, placing it in exactly the same position it was before the bank failed, there is no application of the doctrine of estoppel in this case. Blodget v. Perry, 97 Mo. 263; St. Louis v. Lumber Co., 98 Mo. 613; State ex rel. v. Sitlington, 51 Mo.App. 252; Reichla v. Gruensfelder, 52 Mo.App. 43.

Sangree & Lamm for respondent.

(1) Plaintiff can sue in equity to remove the shadow and menace of the Rowse deed of trust, and reestablish its own and the lien thereof. Seitz v. Dunning, 8 Mo.App. 208; Valle's Adm'x v. American Iron Mountain Co., 27 Mo. 463; Douglas v. Douglas Bagging Co., 94 Mo. 226; 2 Jones on Mortg. [3 Ed.], sec. 966. (2) The answer pleads payment of our note to an alleged authorized agent -- one Thompson. The record does not sustain such defense. First. Because, neither Thompson, Newkirk nor The First National Bank had the custody of the note in question at the time of the alleged payment, and hence defendant dealt with them, or either of them, at his own peril under such circumstances. 2 Jones on Mortg. [3 Ed.], sec. 956; Tappan v. Morseman, 18 Iowa 499; Padley v. Neill, 134 Mo. 364; Cummings v. Hurd, 49 Mo.App. 139; Murphy v. Barnard, 162 Mass. 72; Englert v. White, 92 Iowa 97; Trowbridge v. Ross, 105 Mich. 598; Joy v. Vance, 104 Mich. 97; Ilgenfritz v. Ins. Co., 81 F. 27. Second. Because, payment of interest by Sibert, from time to time, to the First National Bank, did not make such bank plaintiff's agent to collect the principal. Brewster v. Carnes, 103 N.Y. 556; Klindt v. Higgins, 64 N.W. 414; Western Security Co. v. Douglas, 44 P. 257; Stark v. Olsen, 63 N.W. 37; Bank v. Rice, 67 N.W. 165; Powers v. Ins. Co., 83 Hun. 254. Third. Because, the note's being payable at the First National Bank does not alter the right of the indorsee for relief, where the money is deposited after due, as here. Ward v. Smith, 7 Wall. 447; Cummings v. Hurd, 49 Mo.App. 139; Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62; Wood & Co. v. Trust Co., 41 Ill. 267; Glatt v. Fortman, 120 Ind. 384; Adams v. Imp. Com., 44 N. J. L. 638; Cheney v. Libbey, 134 U.S. 69. Fourth. Because, the First National Bank, under the circumstances disclosed by the record, was the agent of Sibert. The relation of depositor and depository existed between them, and, as he unfortunately trusted the bank, he must now bear the resulting hardship and loss. Ward v. Smith, 7 Wall. 447; Adams v. Hackensack Imp. Com., 44 N. J. L. 638; Trowbridge v. Ross, 105 Mich. 598. Fifth. Because, there was no pretense that Mr. Sibert ever knew of these letters until they were read on the stand. He could not, therefore, rely on them and be led thereby into trusting any one as our general agent. Crane v. Gruenewald, 120 N.Y. 274; Leu v. Mayer, 34 P. 969; Lawson v. Nicholson, 31 A. 386. (3) But from any point of view, Mr. Sibert, by treating the deposit as his own and by having it allowed to him by the receiver of the defunct bank, after knowledge of all the facts, and then by transferring the same as collateral security for a loan, elected to treat the money as his own deposit, and not as a payment on our note, and he is now estopped to change positions; for the two are repugnant. He must abide his election. Drew Glass Co. v. Baldwin, 27 Mo.App. 44; Stoller v. Coats, 88 Mo. 514; Bank v. Burt, 93 N.Y. 233; Nansen v. Jacob, 93 Mo. 344; Fox v. Windes, 127 Mo. 502.

Brace P. J. Marshall, J., dissenting.

OPINION

Brace, P. J.

On the first day of August, 1893, M. H. Sibert, one of the defendants in the above entitled cause, by his deed of that date, in which his wife joined, conveyed a tract of land, containing one hundred and twenty acres, described in the petition, and situate in Pettis county, to John Montgomery, Jr., in trust to secure the payment of a promissory note in words and figures as follows:

"$ 3,365.23. Sedalia, Mo., July 21, 1893.

"Four months after date I promise to pay to the order of C. Newkirk and J. C. Thompson, at the First National Bank of Sedalia, Mo., thirty-three hundred and sixty-five and twenty-three hundredths dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of eight per cent per annum.

"H. M. Sibert."

This deed of trust was filed for record in the office of the recorder of said county on the nineteenth of August, 1893, and duly recorded in Book 100 at page 133. Afterward the following release was entered upon the margin of said record of said deed of trust:

"The note herein mentioned having been fully paid, satisfaction of the deed of trust is hereby acknowledged. Dec. 8th. 1893.

"C. Newkirk

"J. C. Thompson."

"Note produced and canceled.

"Attest: J. H. Pilkington, Recorder."

On the same day, December 8, 1893, there was filed for record in the office of the recorder of said county and duly recorded, a deed of trust duly acknowledged and delivered by the said M. H. Sibert and his wife, whereby they conveyed the same with other lands, the whole containing six hundred and forty acres, to E. W. Rowse, in trust to secure the payment of a principal promissory note for $ 9,000, payable five years after date, and ten interest notes each for $ 270, payable half yearly, to the Connecticut Mutual Life Insurance Company. Afterward on the eighteenth of May, 1894, this suit was instituted by the respondent bank, against said insurance company, Rowse, Pilkington, Montgomery, M. H. Sibert and Louise Sibert his wife, charging in the petition, that the said promissory note before due and for full value was indorsed by the said J. C. Thompson and C. Newkirk and delivered to the plaintiff bank, which is now and ever since has been the owner thereof; that the same remains due and unpaid; and that said deed of trust was also delivered to plaintiff and has since remained in its hands, a subsisting and valid security for said note; that the said Newkirk and Thompson, without any power so to do, or any knowledge of or authority from the plaintiff bank, assumed wrongfully to release said deed of trust on the margin of the record thereof; that said marginal release falsely certified that said note was paid, and that said release was attested by the recorder who certified that the note was at the time produced and canceled, all of which was untrue; that by the filing of the Rowse deed of trust on the same day, the same became apparently but wrongfully a prior lien of record on said one hundred and twenty acres of land, when it should of right be a lien subsequent and inferior to plaintiff's deed of trust; and praying a decree that the pretended release be canceled, and that the lien of the Rowse deed of trust be postponed and made subject to the other, and for general relief. The defense set up by the defendant Sibert in his answer to the petition, is payment of the note in full to J. C. Thompson, who, it is therein alleged, was at the time the agent of the plaintiff, duly authorized to receive payment of the same, upon which, issue was joined by reply. The answers of the other defendants do not appear in the record. Upon the hearing the issues were found for the plaintiff bank, and a decree entered in accordance with the prayer of the petition, from which the defendant Sibert alone appeals.

It appears from the evidence that the plaintiff is a national bank doing business in Ripley, in the State of Ohio, of which W. T. Galbreath was cashier, and G. Bambach was the vice-president and attorney; that the defendant Sibert, a large land owner of...