St. Charles Savings Bank v. Orthwein Inv. Co.

• Citation: 140 S.W. 921,160 Mo. App. 369
• Parties: ST. CHARLES SAVINGS BANK v. ORTHWEIN INV. CO.
• Decision Date: 07 November 1911
• Court: Missouri Court of Appeals

140 S.W. 921

160 Mo. A. 369

ST. CHARLES SAVINGS BANK v. ORTHWEIN INV. CO.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

1. LIMITATION OF ACTIONS (§ 55) — COMPUTATION — ACCRUAL OF CAUSE OF ACTION — TORT.

Where the cashier of plaintiff bank embezzled its money by means of drafts either drawn to the order of or indorsed to defendant to cover losses in speculative transactions, the statute of limitations did not begin to run against the bank's right to recover the money from defendant until the drafts were collected.

2. TRIAL (§ 170) — QUESTION FOR COURT OR JURY — DIRECTION OF VERDICT.

The rule that a defendant is entitled to have a jury determine the credibility of the testimony offered by plaintiff, though no evidence is offered to contradict it, does not apply so as to prevent the direction of a verdict, where defendant's statements and attitude during the progress of the trial clearly indicated that it did not seriously dispute the existence of any of the facts essential to plaintiff's recovery.

3. BANKS AND BANKING (§ 112) — FUNCTIONS AND DEALINGS — DRAFTS — VALIDITY — AUTHORITY OF CASHIER.

Where the cashier of plaintiff bank drew drafts against its deposits in other banks and transferred them to defendant to cover losses in speculative transactions of his own, the drafts disclosed on their face, to one having defendant's knowledge, that the cashier was exercising his authority as cashier in favor of himself as principal, and that the drafts were therefore presumptively illegal and void.

4. BANKS AND BANKING (§ 112) — FUNCTIONS AND DEALINGS — DRAFTS — AUTHORITY OF CASHIER.

No implied authority in a cashier of a bank to issue drafts for his own benefit can arise from the course of business in the bank, nor can the bank become bound by the cashier's acts in issuing such drafts because of the careless trustfulness of the directors, or of their neglect of duty, nor by their having sanctioned the issuance by him of other drafts than those in question.

5. MONEY RECEIVED (§ 12) — NATURE OF LIABILITY — DEFENSES.

Where the cashier of plaintiff bank drew drafts and issued or transferred them to defendant to cover personal losses in speculative transactions, and plaintiff thereafter sued defendant for the amount of the drafts as for money had and received, it was no defense that, after defendant received and collected the money, it either expended it as the cashier's agent, or paid it over to defendant's New York principal, since, in order to defeat plaintiff's right to recover in such action, defendant must show a right in itself or in its alleged principal at least equal to the right of plaintiff.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by the St. Charles Savings Bank against the Orthwein Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for money had and received. A trial being had, the court, at the close of all the evidence, instructed the jury to return a verdict for the plaintiff, and the defendant has appealed from the judgment entered on such verdict. As no point is made on the pleadings, it is unnecessary to set them forth.

It appeared from the evidence offered by the plaintiff that during the year 1902 the plaintiff was doing a general banking business at St. Charles, Mo., having A. F. Mispagel as its cashier. It kept funds on deposit in St. Louis with the American Exchange Bank and the Mechanics' National Bank, subject to withdrawal by means of drafts issued by the cashier. The defendant was doing a general brokerage business in the city of St. Louis, and Mispagel had a great many dealings with or through the defendant of a speculative nature, dealing in "puts and calls," buying and selling wheat, stocks, etc. These transactions were strictly on his own account, and not in any way connected with the plaintiff bank, or its business. In the course of them he issued and delivered to the defendant from time to time nine drafts numbered, dated, and in amounts as follows:

                Number of     Dated.         Amount
                 Draft
                 95288      May 29, 1902     $  900 00
                 95563      June 11, 1902       488 92
                 90049      July 1, 1902        500 00
                 97142      Sept. 23, 1902      500 00
                 97199      Oct. 14, 1902       300 00
                 .....      Oct. 15, 1902       500 00
                 97345      Oct. 21, 1902     1,000 00
                 97985      Nov. 20, 1902     1,000 00
                 98525      Dec. 12, 1902       400 00
                                              --------
                  Total .................... $5,588 92
                

Each of the drafts was signed by Mispagel as cashier of the plaintiff bank, in favor of the defendant, as payee, and was addressed either to the American Exchange Bank or the Mechanics' National Bank in St. Louis, as drawee. They were received from Mispagel by the defendant and collected by it from the drawee bank, being deducted from the funds of the plaintiff on deposit with such drawee bank. The first draft for $900, dated May 29, 1902, was received by the defendant on May 31, 1902, and collected from the drawee bank June 3, 1902. The other drafts were received and collected thereafter. The case presented was one of clear embezzlement by the cashier. Nothing was ever paid to the plaintiff bank for any of the drafts, nor was the money collected on them ever refunded to it. The proceeds of the drafts, after being collected by the defendant, were applied toward the payment of the cashier's individual account with the defendant, arising out of the speculative transactions we have mentioned. The evidence on behalf of the plaintiff was clear and convincing and entirely uncontradicted. It consisted of the nine drafts and their indorsements, which were introduced in evidence; the testimony of plaintiff's secretary; the accounts which had been rendered by the defendant to Mispagel and showed the receipt by defendant of the drafts and the application of the proceeds to his individual account; and the testimony of defendant's cashier that the drafts passed through his hands as cashier of the defendant and were applied to Mispagel's individual account with the defendant. No evidence was offered by the defendant or elicited by it on cross-examination, tending to disprove the evidence offered on behalf of plaintiff, or to impeach plaintiff's witnesses. Defendant appears to have assumed the attitude at the trial that, while as payee it did receive from Mispagel and collect the drafts...