Stotts City Bank v. Miller Lumber Company

• Decision Date: 28 April 1903
• Citation: 74 S.W. 472,102 Mo.App. 75
• Parties: STOTTS CITY BANK, Appellant, v. MILLER LUMBER COMPANY, Respondent
• Court: Missouri Court of Appeals

74 S.W. 472

102 Mo.App. 75

STOTTS CITY BANK, Appellant, v. MILLER LUMBER COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 28, 1903

Rehearing Denied 102 Mo.App. 75 at 84.

Appeal from Lawrence Circuit Court.--Hon. H. C. Pepper, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

D. B Jones and Cloud & Davis for appellant.

(1) It was the imperative duty of the court, under section 695, Revised Statutes 1899, to make a finding of all of the issuable facts presented by the pleadings and evidence; also of the law applicable to the issuable facts. Unless the court has so found, the case should be reversed and remanded for new trial. Ins. Co. v. Tribble, 86 Mo.App. 546; Cochran v. Thomas, 131 Mo. 278; Nichols v Carter, 49 Mo.App. 401; Bailey v. Emerson, 87 Mo.App. 225. (2) When the finding of facts is not supported by the evidence, it may be assailed in the appellate court if the evidence is preserved by a bill of exceptions. Freman v. Hemenway, 75 Mo.App. 621; Nichols v. Carter, 49 Mo.App. 401. (3) The court should have passed on the question, which was presented for consideration by the evidence, whether or not the moneys deposited in the Stotts City Bank were the moneys of defendant bank, or of O'Kelley, and whether defendant received the proceeds of the two checks in issue. (4) The evidence unquestionably shows that every dollar placed by O'Kelley in plaintiff bank was checked out and placed to the credit of defendant in the Farmers' Bank of Mt. Vernon. It was the duty of the defendant to either honor and pay the checks sued on, or refund the money which plaintiff paid out on O'Kelley's checks, and which went to the credit of defendant in the Farmers' Bank. National Bank v. Lumber Co., 54 Mo.App. 327; National Bank v. Lumber Co., 60 Mo.App. 255. (5) Defendant, through its president Mr. Miller, in settling and balancing its account with the Farmers' Bank, and agreeing to balance O'Kelley's account with plaintiff bank, ratified the acts of its agent, O'Kelley, and will not be heard to complain of want of authority.

H. Brumback and Edw. J. White for respondent.

(1) Appellant's request that the court should state its conclusions of fact separately in writing, was made after the judgment of the court in favor of defendant was announced, and too late. The purported finding of fact is no part of the record, for that reason, and will not be considered by this court. "A proper construction of the section (695, now R. S. 1899) requires . . . and it necessarily follows that the request for such findings must precede the judgment." Hamilton v. Armstrong, 120 Mo. 614; Young v. Stephens, 66 Mo.App. 226; Butts v. Ruby, 85 Mo.App. 405; Loewen v. Forsee, 137 Mo. 39. (2) "The rendition and the entry of a judgment are entirely different things. The first is a purely judicial act of the court alone and must be first in order of time, while the entry is merely evidence that a judgment has been rendered and is merely a ministerial act." 18 Enc. Pl. and Prac., 430; Fontaine v. Hudson, 93 Mo. 62; Gray v. Palmer, 28 Cal. 416. (3) "Conclusions of fact" found by the court, do not cover all the issues. This being a case at law, tried to the court, and no declaration of law having been asked, and there being evidence to support the special finding, there is nothing for this court to review. Sutter v. Raeder, 149 Mo. l. c. 307; Railway v. News Co., 151 Mo. 389; Lumber Co. v. Mining Co., 78 Mo.App. 681. (4) No authority, direct or implied, was shown by the evidence, in O'Kelley, as agent of defendant in the lumber business to check out funds once deposited in the Farmers' Bank to credit of the defendant, other than to remit the same to defendant; and the drawing by him of the checks in suit and the depositing of the same with plaintiff in his own name, was a conversion and embezzlement of such fund. Thereafter any return of any part of the fund, was but paying a debt he owed defendant. The nature of O'Kelley's transactions prove beyond doubt that they were but a method to conceal his shortage to his principal. State ex rel. v. Elliott, 157 Mo. 619; Bank v. Lowell, 109 Mass. 214; Bank v. South Hadley, 128 Mass. 503; Craft v. Railroad, 22 N.E. 920; Sims v. U. S. Trust Co., 9 N.E. 606; Nat. Bank v. Ins. Co., 103 U.S. 783; Edwards v. Dooley, 24 N.E. 829; Bickford v. Menier, 14 N.E. 438; Evangelical Synod v. Schoeneich, 143 Mo. 656. (5) Plaintiff's cashier knew the line of business in which defendant was engaged, and the scope of O'Kelley's power as its agent, and the burden fell on plaintiff to show that O'Kelley as such agent had authority to draw the checks. Johnston v. Hurley, 115 Mo. 519; Bank v. Hogan, 47 Mo. 474; Hotel Co. v. Furniture Co., 73 Mo.App. 138; Brosnahan v. Best Brewing Co., 26 Mo.App. 386; Mechanics Bank v. Schaumberg, 38 Mo. 228; Gerard v. McCormick, 29 N.E. 115; National Bank v. Ins. Co., 104 U.S. 54; Merchants Bank v. Bergen, 115 U.S. 391; United States v. City Bank of Columbus, 21 Howard 353; Floyd Acceptances, 7 Wallace 676. (6) There could be no ratification of O'Kelley's act in drawing the checks, by defendant or by Miller as its general manager, because at the time he had the conversations in evidence with plaintiff's cashier, it is unquestionable that he had no knowledge of the existence of either of the checks in suit. Pitts v. Steele Mercantile Co., 75 Mo.App. 221; Cravens v. Gillilan, 63 Mo. 33; State ex rel. v. Findley, 101 Mo. 377; Jones v. Williams, 139 Mo. 77. Ratification can be effectual only when the acts were done on account of the principal. Story on Agency, sec. 251a; Planing Mill v. Brundage, 25 Mo.App. 273; Herd v. Bank, 66 Mo.App. 646.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

--Plaintiff, a Missouri banking corporation, brought this action against defendant, a Missouri business corporation, on two checks, both dated Mt. Vernon, Missouri, January, 1901, one for $ 400, bearing date the eleventh and one for $ 325, bearing date the fourteenth of that month, both payable to plaintiff or order upon the Farmers' Bank of Mount Vernon, purporting to be executed by defendant, by C. W. O'Kelley, and upon which instruments plaintiff averred it paid defendant the respective sums of money specified on the face of each, but on presentation and demand for payment to the Farmers' Bank they were dishonored.

The answer was a general denial verified by oath of the president of defendant and, after trial before the court, a finding for defendant was orally announced, whereupon before entry of such finding and judgment, the plaintiff made parol request for a written finding of the facts, and the trial judge entered upon his docket, "verdict and judgment for defendant," and subsequently on the same day filed a finding in writing as follows:

"The court finds that the defendant company was a corporation, buying and selling lumber at Aurora, Mt. Vernon and Miller, Missouri, and that C. W. O'Kelley was the agent at the yard at Mt. Vernon, and had been since the establishment of the yard there in 1891; that said O'Kelley had been issuing checks on the Mount Vernon bank, payable to the Stotts City Bank for a considerable length of time, and had been depositing the proceeds of said check to his individual credit in the Stotts City Bank; that said O'Kelley issued the checks in question; that the money so deposited in the Stotts City Bank had been checked out to the T. A. Miller Lumber Company and that said O'Kelley had no account with the Farmers' Bank; that defendant had no notice or knowledge of O'Kelley's transactions with the Stotts City Bank, and had no authority either expressed or implied to bind defendant. That under the law, and facts, plaintiff can not recover."

Which finding plaintiff assailed by exceptions unsuccessfully and its motion for new trial was also overruled.

The testimony disclosed that defendant was engaged in business in Lawrence county, with its places of business at various points therein, including a yard at Mount Vernon, where the Farmers' Bank, upon which the checks in suit were drawn, was located and at which bank defendant had an account. O'Kelley had been agent of defendant for ten years preceding January, 1901, and had transacted all business at the Farmers' Bank, signing the defendant's name to all checks thereon, with the knowledge of T. A. Miller, its manager and president, who frequently completed such check, which had been signed in blank in defendant's name by O'Kelley, and who received checks drawn thereon signed by O'Kelley in defendant's name for remittances of the business of defendant and deposited them in the bank at Aurora.

In October, 1900, O'Kelley opened an account in his individual name with plaintiff at Stotts City, and the checks here involved were deposited by O'Kelley with plaintiff and their amount placed to his credit and they were forwarded by it to St. Louis in due course of collection in the same manner as numerous other checks drawn in the same form had been deposited, credited and collected on other occasions, and the funds of this individual account were drawn by O'Kelley and transferred to the account in defendant's name kept by him at Mount Vernon. The banking business conducted by defendant with the Farmers'...