Roberts v. Hodges

• Decision Date: 11 June 1920
• Docket Number: No. 15719.,15719.
• Parties: ROBERTS v. HODGES et al. (VANDALIA BANKING ASS'N Garnishee).
• Court: Missouri Court of Appeals

222 S.W. 859

ROBERTS v. HODGES et al. (VANDALIA BANKING ASS'N Garnishee).

No. 15719.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs May 7, 1920.

Opinion Filed June 11, 1920.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by L. W. Roberts against J. R. Hodges, in which plaintiff recovered a judgment and sued out execution and the Vandalia Banking Association was made garnishee and the Farmers & Merchants Bank of Vandalia, Mo., interpleaded, claiming the garnished money. On trial of the interplea a jury was waived, and judgment rendered for the interpleader. Motions for new trial and in arrest were overruled, and plaintiff appeals. Judgment affirmed.

Plaintiff, appellant here, on March 8, 1916, recovered a judgment against J. R. Hodges, in the circuit court of Audrain county, for $551.40 with interest at 8 per cent. per annum from that date, and costs. On December 18, 1916, he sued out an execution, under which, and by direction of plaintiff, the sheriff attached in the hands of the Vandalia Banking Association all moneys, etc., belonging to the defendant and duly summoned it as garnishee. Interrogatories were duly filed, the garnishee appeared at the March, 1917, term of the circuit court and answered, admitting that it had in its possession and under its control the sum of $876.35, which it held to the credit of the account of the defendant Hodges. With its answer the garnishee asked the court for an order permitting it to pay the above sum into court, to be allowed a reasonable sum for answering and for attorney's fee, and to be discharged. Despositing the amount, less $25.00 allowed it, the garnishee was discharged.

At the same term of court the Farmers & Merchants Bank file its interplea, admitting the garnishment of the money and its deposit in court by the garnishee, and avers that when the money was attached it was not the property of defendant Hodges but of the interpleader, further claiming that the money so attached was money realized by Hodges on the sale of a crop of corn, and was rent money due by Hodges, as its tenant of the farm on which the crop was grown; that it had a lien on the crop, and this money, being its share of the proceeds of the sale of the crop, it has a lien on it.

Plaintiff, by reply, challenged the claim of the interpleader.

The cause coming on for trial under the interplea, a jury being waived, the court found the issues in favor of the interpleader and adjudged that it recover the sum of $851.35, the amount paid into court by the garnishee, after deducting the sum of $25.00 allowed.

At the trial the interpleader introduced evidence showing it was owner of the land, 220 acres, in Rails county, and had leased it to Hodges and his brother. The lease was introduced in evidence. Among other provisions in the lease is one that the tenants are to pay $112.50 for 25 acres of meadow and pasture land, and are to give a note for this amount, payable January 1, 1917, "all crops due to stand good for all rents." The lease further provides that the lessees, in consideration of the leasing, etc., agree to pay the party of the first part as rent for the corn land "two-fifths delivered at railroad or as good a market, * * * and one-third of the oats threshed and delivered at Farber or Vandalia, Missouri."

Defendant Hodges testified that he lived on this farm, which he and his brother had leased, taking possession March 1, 1916; that he farmed the land under the lease, putting 45 acres in oats and about 110 acres in corn raising about 2,115 bushels of corn. He sold 1,508 bushels of this corn to one Grover Sutton and 617 bushels to one Samuel Sutton at 80 cents a bushel, which was all the corn he sold off the place; that he kept 431 bushels for his own use, making the total amount of corn raised on the place 2,546 bushels. The corn was not divided in the field but was gathered and weighed at the home place. Grover Sutton gave him a check for $1,206.80 in payment of the corn. Asked if at any time the interpleader, or any of its directors, or its agent, had given him authority to sell this corn, he said "No." Witness testified that he deposited the money he had received from Grover Sutton for the corn to his own credit with the Vandalia Banking Association and had never turned over any part of it to the interpleader; nor had he done so at the time of the garnishment, nor in any manner compensated it for the rent, nor paid it any money since selling the corn to the Suttons; that the money garnished was the money he had received from the sale of the corn. Witness said he sent the check he had received from Grover Sutton for the corn, down to the Vandalia Banking Association by mail, and went to Vandalia a few days afterwards to see Mr. Gatson to apply it on the rent, but Mr. Gatson was not there; missed him on a second trip. The third trip he made to see Mr. Gatson at Vandalia was on the day the money was garnished; had never been able to see Mr. Gatson after he sent in the check, and had not seen him before the money was garnished, after he had deposited it in the Vandalia Banking Association. Asked what he wanted to see Mr. Gatson for, witness said that he wanted to figure up with him and go over the weights and things and apply the money in the bank to the rent; pay his rent for the two-fifths of the corn. None of the rent has been paid, neither the corn rent nor the cash rent, except the rent on oats, which he threshed; that had been paid. The oats rent had been settled for with his landlord and is not here involved.) What he has not paid for was two-fifths of the corn and $112.50 cash rent for the grass. "The corn rent was due whenever the corn was disposed of," said the witness. The corn was delivered the latter part of November and the first part of December, 1916. Witness said that he had not given any note for the $112.50.

On cross-examination defendant repeated that he had not sold any corn to any one, except the two Suttons, during the year 1916, from March 1, 1916, to the present time (April 5, 1917). Samuel Sutton had paid him for the corn with a check, which he cashed. It was for $445.00. Out of this he paid his expenses; had kept 421 bushels of corn to feed out and had about 100 bushels left. Asked how he happened to deliver the corn to Samuel and Grover Sutton, witness answered that at the time they were paying a little more out there—feeders were—than was being paid at the railroad; were paying 80 cents a bushel; had gone ahead and told the corn to them without asking anybody; that he had had a talk with Mr. Gatson and he had told him to go ahead and deliver the corn; never said for him to sell it and collect for it, but that if he could sell it out there for as much or more than at the railroad, to do so. Gatson did not tell him to go ahead and deliver the corn to either Grover or Samuel Sutton. His understanding was that Gatson told him to go ahead and deliver the corn to anybody he could sell it to out there who would pay as much or more than he could get at the railroad; that was his understanding; could not say exactly when he collected from Grover Sutton for the corn he had delivered to him, but he had deposited the check for $1,206.80, received for it, December 7th; judged that he had received it two or three days before. He had deposited this check in the Vandalia Bank, as well as a check given him by a man named McClardy for rent of a house and ten acres of ground on the Curtley farm. That check was for $50.00. Witness testified that he deposited the cheeks with the Vandalia Banking Association to his own credit and checked on them himself. He testified as to the deposits that he had made with the Vandalia Banking Association from November 1st, when his balance was $33.35, down to the time of the deposit April 3, 1917, depositing $1,256.80 December 8, 1916. (This included the Grover Sutton check for $1,206.80 and the McClardy check for $50.00.) The money he received from Grover Sutton was evidenced by the check for $1,206.80, which he sent to the Vandalia Banking Association by mail. Asked by the court why he had not deposited the money in the Farmers & Merchants Bank, witness answered that he always did business at the Vandalia Banking Association and his check was on that institution and he sent it to them. At that time the Farmers & Merchants Bank of Vandalia was not actively engaged in banking business. Asked if that was the reason he did not send it to the Farmers & Merchants Bank, or if it was because he was doing business at the Vandalia Banking Association, witness answered that it was both, he supposed; that there was no such bank there at the time as the Farmers & Merchants Bank. There was another bank there but under a different name. The Vandalia Banking Association was where he did business and he felt like that was the place for him to send the check. A part of the corn delivered to Grover Sutton belonged to the Farmers & Merchants Bank of Vandalia, and a part to witness and his brother; hauled enough to pay the rent; "it belonged to the bank; that is we hauled enough to pay our rent;" and owed the interpleader $112.50 cash rent; did not send the Farmers & Merchants Bank of Vandalia the money for its corn but deposited it, together with his own part of it, in the Vandalia Banking Association. Asked by the court if he had consulted with any one connected with the interpleading bank about where he should deliver its part of the corn, witness answered that he had a talk with Mr. Gatson some time before he commenced to gather the corn and told him he thought he would be able to get more money for it out there, that is, close in the neighborhood and from feeders than at the local market, and Gatson told him he could deliver it out there. When he deposited the check in the bank, about the 6th or 8th of December, 1916, he only had about $18.00 to his credit.

Mr. Gatson, sworn...