State v. Trimble

• Decision Date: 02 December 1927
• Docket Number: No. 26999.,26999.
• Citation: 300 S.W. 475
• Parties: STATE ex rel. GORDON, Relator, v. TRIMBLE, Judge.
• Court: Missouri Supreme Court

300 S.W. 475

STATE ex rel. GORDON, Relator, v. TRIMBLE, Judge.

No. 26999.

Supreme Court of Missouri, in Banc.

December 2, 1927.

Original proceeding in certiorari by the State, on the relation of John P. Gordon, against Frank Trimble and others, Judges of the Kansas City Court of Appeals, to quash an opinion of the Kansas City Court of Appeals affirming a judgment for plaintiff in an action wherein the First National Bank of Mission, Tex., was plaintiff and relator was defendant. Opinion and judgment of Court of Appeals quashed.

Dumm & Cook and D. W. Shackleford, all of Jefferson City, and Paul Barnett, of Sedalia, for relator.

Ira H. Lohman, of Jefferson City, for respondents.

BLAIR, J.

This Is an original proceeding in certiorari, whereby relator seeks to quash the opinion of the Kansas City Court of Appeals in the case of First National Bank of Mission, Tex., Respondent, v. John P. Gordon, Appellant, lately pending before respondents, and wherein respondents affirmed the judgment of the circuit court of Cole county.

The following facts are gleaned from the opinion of respondents: The First National Bank of Mission, Tex. (hereafter referred to as "bank"), sued relator upon a promissory note for $3,500, together with interest thereon and attorney fees. No defense was made to such note, except by way of counterclaim. The trial court directed a verdict for the bank against relator, and a verdict for $4,414.61 was accordingly returned in favor of the bank on its petition. No contention of any conflict is made in respect to the opinion in so far as it affirmed the judgment on the bank's note. The contention of conflict grows out of the affirmance of the judgment on relator's counterclaim.

Relator's answer admitted the execution of the note. He set up a counterclaim based upon the alleged facts that, on or about October 7, 1920, and at the request of the bank and for its use, relator deposited in the First National Bank of Brownsville, Tex., the sum of $9,889.70, which the bank promised to repay to relator within a reasonable time; that the bank drew out and applied said deposit to its own use. Six payments are set out as credits upon the note given by relator to the Brownsville bank, leaving a balance of $5,743.49 alleged to be still due relator because of such advancement.

The bank's reply denied the foregoing transaction and pleaded the Texas statute of limitations. That statute seems to have dropped out of the case, or, at least, is not further considered in the opinion. The reply, also by way of answer to relator's counterclaim, further alleged that the bank was organized under the laws of the United States and that relator was a stockholder, director, and the president of such bank, and, while such director and president, relator allowed and permitted excessive loans and overdrafts, in violation of the laws of the United States, and thereby became liable to the bank on account thereof; "and that if he made any payment it was voluntary, and without any express or implied promise or reimbursement, and was made for the purpose of protecting his stock in said bank and to prevent the same from being taken in charge by the comptroller of currency of the United States; that any such payment was voluntary and made with the distinct understanding that he was not to be reimbursed therefor."

By way of further answer to relator's counterclaim, the bank alleged:

"That defendant never made any claim under the facts alleged in his counterclaim until after the institution of this suit, but that he stood by, well knowing all the facts, and afterwards sold a large portion of his stock in the plaintiff bank, and by reason of advancements made to the bank by other directors, he sold same at an increased value and accepted and received the benefits of the money so paid by other directors and stockholders to protect the bank and prevent its being closed; and that he was thereby estopped from setting up his counterclaim."

The opinion of respondents shows that relator and his wife purchased 90 shares of the stock of the bank and that relator thereupon became president of the bank. Its capital stock was $25,000. One Sprowl owed the bank $32,000 when relator became its president. At one time thereafter this indebtedness had mounted to $75,000 or $80,000. The advancements made to Sprowl after relator became president of the bank were made by the cashier and not by relator personally. When relator learned the situation in respect to the Sprowl account, he called a meeting of the board of directors, and, under its direction, watched the account until it was reduced by collections to approximately $18,000. Relator then closed down on the account and took assignments from Sprowl in his own name as trustee for the bank. This occurred July 9 and 10, 1920.

On October 6, 1920, the bank received a visit from one Thompson, a national bank examiner. Thompson insisted that the Sprowl overdrafts be taken out of the bank. Thereupon the directors, each in proportion to the stock held by him, executed their notes to the First National Bank of Brownsville, Tex., to take up the Sprowl overdraft, which was then in excess of $18,000. Relator's note was accordingly executed for $9,889.70.

It appears that the credits given to the bank by relator in his counterclaim were in fact collections made from time to time on the Sprowl assignments and credited pro rata upon the notes of the directors. Relator testified, in substance, that he and the other directors put up the money secured by the notes rather than to have the national bank examiner close the bank. He said he put up his money with the understanding that the bank was to repay the directors whatever balance on the notes the Sprowl assignments failed to pay off.

The trial court sustained a demurrer to the evidence in support of relator's counterclaim, and judgment was entered accordingly, together with judgment against relator in the sum of $4,414.61, upon the note pleaded in the bank's petition. From this judgment relator appealed to the Kansas City Court of Appeals. That court affirmed the judgment. After unsuccessfully moving for a rehearing in that court, relator applied for and secured our writ of certiorari, upon the ground that the opinion of respondents, in affirming the judgment of the trial court, conflicts with certain decisions of this court. That court has complied with our writ by certifying up the record before it.

Among other conflicts urged here, relator contends that the opinion of respondents conflicts with American Brewing Co. v. St. Louis, 209 Mo. 600, 108 S. W. 1, because "the Kansas City Court of Appeals, in said opinion, held that where stockholders voluntarily assessed themselves to relieve the corporation from pecuniary embarrassment, or for the betterment of their stock, such advancements are not debts, but assets of the corporation, and that this is a sufficient consideration accruing to the defendant. In so holding, the Kansas City Court of Appeals failed to follow the last controlling decision of the Supreme Court of Missouri." The portion of respondents' opinion covering this point is as follows:

"It is further insisted by plaintiff that the counterclaim was properly withheld from the consideration of the jury, not only on the ground that it was a voluntary payment, but because the payment was made by defendant for the purpose of saving his financial interest in the bank, and this constituted a good consideration for his action. The rule is that where stockholders voluntarily assess themselves to relieve the corporation from pecuniary embarrassment, or for the betterment of their stock, such advancements are not debts, but assets of the corporation. Brodrick v. Brown (C. C.) 69 F. 497 et seq.; Bidwell v. Railway Co., 114 Pa. 535, 6 A. 729; Trust & Banking Co. v. Irwin, 138 La. 325, 335, 70 So. 313; First National Bank v. Henry (Mo. App.) 202 S. W. 281, 282."

The cases cited by respondents undoubtedly support the general proposition that "where stockholders voluntarily assessed themselves to relieve the corporation from pecuniary embarrassment, or for the betterment of their stock, such advancements are not debts, but assets of the corporation." But it...