Sturdivant Bank v. Houck

• Citation: 47 S.W.2d 135
• Decision Date: 08 March 1932
• Docket Number: No. 21794.,21794.
• Parties: STURDIVANT BANK v. HOUCK.
• Court: Missouri Court of Appeals

47 S.W.2d 135

STURDIVANT BANK v. HOUCK.

No. 21794.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be officially published."

Action by the Sturdivant Bank against Giboney Houck. From an order granting defendant a new trial after verdict for plaintiff, plaintiff appeals.

Reversed, and cause remanded, with directions.

Dearmont & Russell, of Cape Girardeau, for appellant.

W. E. Coffer and Giboney Houck, both of Cape Girardeau, for respondent.

SUTTON, C.

This action, commenced on June 5, 1930, is founded on a promissory note executed by defendant, in the principal sum of $342, to the Cape Exchange Bank of Cape Girardeau. The note is made payable to the order of the Cape Exchange Bank, and was before its maturity transferred by the Cape Exchange Bank to the plaintiff bank by indorsement. The defense set up by the defendant is that the note was given to the Cape Exchange Bank without any valuable consideration whatever to support it. The trial, with a jury, resulted in a verdict and judgment for plaintiff for the principal sum of the note with interest and attorneys' fees, amounting in all to $411.16. From the order of the court granting defendant a new trial, plaintiff has appealed to this court.

The Cape Exchange Bank, on November 12, 1929, sold and transferred all of its assets to plaintiff bank under the provisions of section 11761a, as added by section 11, p. 232, Laws of Missouri 1927, which is section 5379, R. S. 1929, and the note in suit passed in such transfer along with the other assets of the bank. The transfer was authorized by resolution of the board of directors. A written contract transferring the assets was made and signed by both the contracting parties. The note was indorsed by the cashier. The contract recites that, "from the result of an examination of the Cape Exchange Bank, Cape Girardeau, Missouri, the Commissioner deems it a public necessity and advantage that the assets of the Cape Exchange Bank be sold to the Sturdivant Bank, Cape Girardeau, Missouri, in consideration of the assumption of all the liabilities of the Cape Exchange Bank by the Sturdivant Bank (except capital stock liabilities), and has authorized its board of directors to enter into a contract for the consummation of said sale, all in accordance with the provisions of Section 11761a, Laws of Missouri, 1927, p. 232," and provides that the Sturdivant Bank, in consideration of the transfer of all the assets of the Cape Exchange Bank to the Sturdivant Bank, assumes and agrees to pay all amounts due from the Cape Exchange Bank to its depositors, and all the creditors, except stockholders for their stock representing the capital of the Cape Exchange Bank. It is further provided that sufficient of the assets purchased to equal in amount the deposits and other liabilities assumed shall be carried by the Sturdivant Bank as primary assets, and all the remaining assets shall be carried as secondary assets, the secondary assets to be held as collateral to the primary assets, and that final and complete settlement shall be made under the contract two years from the date of the contract, at which time the residue of any of said secondary assets shall be turned over and delivered to the Cape Exchange Bank for its stockholders.

The note in suit was carried by the Sturdivant Bank as one of the primary assets. The note sued on, the resolution of the board of directors of the Cape Exchange Bank, and the contract of sale, were introduced in evidence. The resolution of the board of directors of the Sturdivant Bank was also introduced, authorizing the execution of the contract. At the time the Sturdivant Bank took over the assets of the Cape Exchange Bank, the depositors of the Cape Exchange Bank were entered up as depositors of the Sturdivant Bank, and the Sturdivant Bank paid all of such depositors, or gave them credit on the books as depositors of the Sturdivant Bank, their deposits being subject to withdrawal in cash from the Sturdivant Bank at any...