Sullivan v. Bank of Harrisonville
| Decision Date | 11 April 1927 |
| Docket Number | 25576 |
| Citation | 293 S.W. 129 |
| Parties | SULLIVAN v. BANK OF HARRISONVILLE et al |
| Court | Missouri Supreme Court |
Walsh & Aylward, John H. Lucas, and William C. Lucas, all of Kansas City, and W. D. Summers, of Harrisonville, for appellant.
W. E Owen & Son, of Clinton, and Crouch & Crouch, of Harrisonville, for respondents.
This case comes to the writer for opinion on reassignment. It is an action on contract. On February 4, 1920, the Bank of Harrisonville (hereinafter called the old bank) was declared insolvent, and all of its assets were taken in charge by the then state bank commissioner. Some time shortly prior to July 8, 1920, the State Bank of Harrisonville (hereinafter called the new bank) was organized. On the date last mentioned pursuant to an agreement to which the old bank, the new bank and a trustee for certain creditors of the old bank were the parties, and which was duly approved by the bank commissioner, the new bank took over all the property and assets of the old bank. Whether under the agreement the new bank took over the assets of the old bank as trustee for the purpose of liquidation (that is, converting the assets into cash and distributing it ratably among all the creditors), or whether the new bank obligated itself to pay the creditors, or certain of them, in full of their demands, regardless of what it was able to realize from the assets, is the essence of this controversy.
This suit is bottomed on the agreement just referred to and the parties thereto, to wit, the old bank, the new bank, and the successor of the original trustee, are made the parties defendant. The petition, aside from mere formal matters, alleges, in substance:
(1) That plaintiff is the holder of a time certificate of deposit issued by the old bank November 1, 1919, for the sum of $ 9,000, due six months thereafter, and bearing interest from date at the rate of 4 per cent. per annum.
(2) That on or about July 8, 1920, the new bank acquired, purchased, took over, and received the business and all the money, property, and assets of the old bank, and agreed to pay and became liable for and obligated to pay certain of the obligations and liabilities of said defendant old bank; said purchase and said agreement being in accordance with the terms and conditions of a certain written contract (the one referred to heretofore), a certified copy of which is hereto attached, and made a part hereof and marked 'Exhibit B.'
(3) That in and by paragraph (c) of said written agreement defendant old bank conveyed its property to the new bank in the following language:
'(c) That it will, and hereby does, sell, assign, transfer and set over, pledge, and hypothecate all of its assets of every kind, nature, character, and description, including choses in action, claims, and demands of every kind, nature, and character, due or to become due to it, as fully as if set forth at length herein, and gives said new bank complete control over the same, for the purpose of enabling said new bank to liquidate the same, or any part thereof, or as much thereof as is practicable for the purpose of guaranteeing said new bank against loss on account of assuming the obligations and liabilities of old bank, as hereinafter set forth, together with interest thereon, to the end that said new bank shall be held harmless from the payment of any sum or sums whatsoever, because of having assumed the payment of the debts, obligations, and liabilities of old bank, as hereinafter provided.'
(4) That defendant new bank assumed and agreed to pay certain obligations of defendant old bank in paragraph (a) of said written contract in the following language:
'(a) That it will pay to all such depositors of old bank as have not constituted and appointed G. M. Hargette trustee the respective sums to which said depositors are respectively entitled, and said deposits amounting to approximately $ 59,430.49, but that should the amount thereof exceed said sum, it will nevertheless pay off and discharge the full amount as above provided of all deposits due depositors who have not constituted the said G. M. Hargett trustee, but new bank shall have the right to contest the payment to any person who may claim to have a deposit with old bank or who may assert a claim against said old bank as a depositor, the cost and expenses of such contest and of any suit or other proceedings which may be instituted on account thereof, to be paid by old bank out of its funds held by new bank, or by the trustee or the person, persons or corporation to whom the same may at any time be conveyed under the terms hereof.'
(5) That on the date on which said agreement was entered into plaintiff's certificate of deposit was due and unpaid, and constituted one of the debts of defendant old bank which defendant new bank by the terms of said agreement became obligated to pay.
(6) That plaintiff did not constitute G. M. Hargett, or any other person, trustee to act for him, and that the amount due him from the old bank by virtue of said certificate of deposit was a portion of the said $ 59,430.49, which under paragraph (a) defendant new bank specifically agreed to pay.
And (7) that he presented his said certificate of deposit to defendant new bank and demanded payment thereof on July 27, 1920.
The prayer is for judgment for $ 9,000, with 6 per cent. per annum interest thereon from July 27, 1920, the alleged date of demand.
The joint and separate answer of the three defendants is voluminous and somewhat argumentative. A careful analysis of it discloses the following as the only admissions: (1) That defendants old bank and new bank are duly organized and existing corporations, and defendant Hill is the duly appointed successor of Hargett as trustee; (2) that the old bank issued to plaintiff a time certificate of deposit for $ 9,000, as alleged in the petition; (3) that the said certificate of deposit was due and unpaid on July 8, 1920, and that it constituted a portion of the deposits amounting to $ 59,430.49 mentioned in the 'trust agreement,' referred to in the petition as Exhibit B; and (4) that on July 8, 1920, defendant old bank, defendant new bank, and one G. M. Hargett, trustee, made and entered into a certain agreement, referred to as Exhibit B in plaintiff's petition, and that the copy of said agreement attached to plaintiff's petition, and marked 'Exhibit B,' is a correct copy of said trust agreement. Following the foregoing admissions, there is a general denial of each and every other allegation of the petition.
In addition to the general denial, there are a number of specific denials:
'(a) Defendants deny that said new bank purchased any part of the property and assets of said old bank under said trust agreement, excepting the banking house and fixtures of said old bank and 160 acres of land in the state of Arkansas, owned by said last-named bank, but that all money, property, and assets of said old bank (except as above stated) were delivered to said new bank by the then bank commissioner of Missouri for the purpose of liquidating the affairs of said defunct old bank, as in said trust agreement expressed. * * *
...
To continue reading
Request your trial