Securities Inv. Co. v. Rottweiler

• Decision Date: 27 June 1928
• Docket Number: No. 20177.,20177.
• Citation: 7 S.W.2d 484
• Parties: SECURITIES INV. CO. OF ST. LOUIS v. ROTTWEILER et al. ROTTWEILER v. TOBIN.
• Court: Missouri Court of Appeals

7 S.W.2d 484

SECURITIES INV. CO. OF ST. LOUIS v. ROTTWEILER et al.

ROTTWEILER v. TOBIN.

No. 20177.

St. Louis Court of Appeals. Missouri.

June 27, 1928.

Rehearing Denied July 6, 1928.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Bill of interpleader by the Securities Investment Company of St. Louis against L. E. Rottweiler, Bert F. Fenn, and John C. Tobin, trustee in bankruptcy of the American Oil Burner Company. Judgment for last-named defendant against first-named defendant, and first-named defendant appeals. Affirmed.

Wm. L. Bohnenkamp, of St. Louis (James T. Roberts, of St. Louis, of counsel), for appellant.

Charles P. Williams, of St. Louis, for respondent.

BENNICK, C.

This proceeding was begun on June 6, 1925, in the circuit court of the city of St. Louis, when plaintiff filed a bill of interpleader, representing to the court that it had in its possession certain funds owing to the American Oil Burner Company, a bankrupt, and praying that defendants L. E. Rottweiler, Bert F. Fenn, and John C. Tobin, trustee in bankruptcy, each of whom was claiming all, or a portion of, such fund, be required to interplead therefor.

Of the numerous pleadings that were filed in the case, the only ones that are material upon the issues herein involved are the separate answer of defendant Rottweiler to plaintiff's petition, and the answer of defendant Tobin to defendant Rottweiler's interplea.

The interplea of defendant Rottweiler purported to disclose a claim based upon two negotiable promissory notes, executed by the American Oil Burner Company in his favor, the first for the sum of $2,060, dated November 21, 1923, payable 75 days after date, and bearing interest at the rate of 6 per cent. per annum; and the second for the sum of $1,281.25, dated December 10, 1923, payable 75 days after date, and bearing interest at the rate of 6 per cent. per annum.

It was further pleaded that, prior to the institution of the bankruptcy proceedings, coincident with the execution of such notes, and to secure the payment thereof, the American Oil Burner Company had executed and delivered to defendant Rottweiler two assignments for the total sum of $3,341.25, to be paid out of the reserve due it from the plaintiff herein; and it is a fact of special significance, as will hereafter appear, that the answer contained the statement or admission that the maker of the notes was entitled to credits of $60 on the first, and $31.25 on the second.

In the answer filed by defendant Tobin to the above interplea, it was alleged that defendant Rottweiler had no lien upon, or right to, any of the said reserve in the hands of plaintiff, for the reason that the assignments to him were intended by the parties to be, and had operated as, a mere security for the payment of the amounts of the notes which had been exacted by him from the American Oil Burner Company in return for loans to the latter of much smaller amounts, and which included in, and as a part of, their face value, the reservation of interest by defendant Rottweiler, at a rate in excess of 8 per cent. per annum; and that, by reason thereof, the alleged assignments by way of security for the notes were void.

In due course defendant Rottweiler replied in conventional form. Thereafter a trial was had upon the issues joined, at the conclusion of which the court rendered its decree, finding that the assignments were void; that defendant Rottweiler had no lien upon, or right in, the funds deposited by plaintiff in the registry of the court; and that the balance of such funds, after the payment of costs, belonged to defendant Tobin, trustee in bankruptcy. A motion for a new trial was filed by defendant Rottweiler, and subsequently overruled, after which he was allowed an appeal to this court.

The facts, as they must have been found by the learned trial judge, are that the note for $2.060 was given in return for a loan of $2,000. and the note for $1,281.25 for a loan of $1.250. The weight of the evidence alone would seem to indicate that defendant Rottweiler had rendered no services to the American Oil Burner Company apart from the making of the loans; but, at any rate, whatever doubt might otherwise exist upon such question is dispelled by the solemn admission in his answer, to which we have already made mention, that a credit should be allowed in each instance for the excessive principal amount of the notes. It further appears from the answer of defendant Rottweiler, as well as from the language of his letter to the plaintiff herein (Trustee Tobin's Exhibit No. 2), that the assignments from the American Oil Burner Company, upon which his claim is based, were given solely by way of security for the notes, so that manifestly his right to the fund in court, or any portion thereof, under and by virtue of such assignments, was made to depend...