Short v. Butler
| Decision Date | 01 March 1909 |
| Citation | 117 S.W. 114,136 Mo.App. 356 |
| Parties | MARY E. SHORT, Respondent, v. WILLIAM J. BUTLER, Receiver, etc., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Barton Circuit Court.--Hon. Berry G. Thurman, Judge.
AFFIRMED.
Judgment affirmed.
John A Eaton and E. H. McVey for appellant.
(1) Plaintiff gave authority to J. C. Clark to loan her money and the money was loaned through Tygard & Clark, agents. The plaintiff for many years, and through a long continued course of business, acquiesced in the loaning of her money. She wrote letters about it, and received letters, and interest was paid to her on the loan. She at all times knew that her money did not remain in the bank. She knew she was not dealing with the bank, as a depositor nor in any other capacity, and she knew that her money had been withdrawn from the bank, and was being loaned. Under these circumstances there is no evidence supporting the petition. (2) The account of "Tygard & Clark, Agents" represented a business carried on by them apart from the bank wherein they loaned the money of various parties. In the loaning of this money they acted as agent for these several persons. (3) The plaintiff sues to recover $ 1,144.60, balance claimed to be due her as a depositor in the Bates National Bank at the time of the failure. The defense is that the money was withdrawn by her order and loaned for her benefit through a long series of years. (4) The powers of a national bank are limited to the powers granted by the Act of Congress. Such banks have no other powers other than those expressly granted, and such as are necessary for the purpose of carrying into effect the powers expressly granted. A national bank has no authority to act as a broker in the loaning of money for others. Grow v. Cockrill, 63 Ark. 418, 39 S.W. 60; Bank v. Bank, 173 Mo. 158; Bank v. Townsend, 139 U.S. 67; Bank v. Kennedy, 167 U.S. 362; McCrary v. Chambers, 48 Ill. 445; Weckler v. Bank, 42 Md. 581, 20 Am. Rep. 95; Lazear v. Bank, 52 Md. 78, Am. Rep. 355.
Silas W. Dooley for respondent.
(1) The Bates National Bank, defendant herein, assumed all the liabilities of its predecessor the Bates County Bank which was a State bank. (2) The debt here was one created by the Bates County Bank and it was assumed by defendant. Coffey v. Bank, 46 Mo. 140; Bank v. Claggett, 141 U.S. 520; Eans v. Bank, 79 Mo. 182. The plea of ultra vires cannot be interposed by the defendant under the facts in this case, the transaction was between plaintiff and a State bank. (3) Plaintiff in all her transactions connected with the matter involved in this suit, dealt solely with the banks. The defendant and its predecessors by their long and continuous course of dealing with plaintiff as shown in its deposit slip and letters and the admission, therein contained, are estopped from denying the liability of the bank.
This is a suit by plaintiff to recover the sum of $ 1,144.60, alleged to be due her by the Bates National Bank. Before the institution of the suit, the bank became insolvent and was placed in the hands of a receiver, who is made a party defendant.
In the year 1891, plaintiff deposited in the Bates National Bank $ 280 and continued to make deposits with the bank until October, 1894, when her accumulated deposits amounted to the sum of $ 428, at which time she stated to Mr. Clark, the bank's cashier, that she would like for her money to earn something. The cashier told her that he would lend her money on real estate security so as to make her eight per cent. To this proposal, plaintiff assented. At the time the arrangement was made, Tygard, the president, and Clark, the cashier of the bank, started a business represented by an account with the bank entitled Tygard & Clark, agents. This was done for the purpose of lending the money of the depositors of the bank, who desired to receive more interest on their deposits than the bank was willing to pay. The money of such depositors was transferred to the credit account of Tygard & Clark.
In October, 1894, the sum of $ 428 of plaintiff on deposit was transferred to the account of Tygard & Clark, agents, for the purpose of being lent, and from that time was continuously being lent by said agents. Plaintiff at times drew checks upon the bank for funds which were paid from the semiannual receipts of interest on her loans. She also made additional deposits. This course of business continued for twelve years. At the time of the bank's failure, all the money that had been deposited to the credit of Tygard & Clark had been lent and their account was found to be overdrawn.
During the course of years mentioned, plaintiff had written correspondence at various times with Clark in reference to her money. All the letters from him were signed, J. C. Clark cashier, and were written upon the letterheads of the bank. The plaintiff had no knowledge of the manner in which the accounts of depositors, whose money was to be lent, were kept. She only knew that her money was lent and that for a time it...
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