Tate v. Farmers' Exchange Bank of Chula
| Decision Date | 26 January 1931 |
| Docket Number | No. 17120.,17120. |
| Citation | 37 S.W.2d 992 |
| Parties | TATE v. FARMERS' EXCHANGE BANK OF CHULA et al. |
| Court | Missouri Court of Appeals |
Kitt & Marshall, of Chillicothe, for appellant.
Nolan M. Chapman, of Chillicothe, for respondents.
This action was brought to recover the purchase price of a note in the principal sum of $4,400, dated June 1, 1927, due six months from date, together with interest thereon. Said note was executed by W. C. Cullison and Marie Cullison, his wife, and was purchased from defendant bank by plaintiff on July 26, 1927, for the sum of $4,447.90, being the principal and accrued interest. When delivered to the purchaser the note was indorsed: "Without recourse we assign to Mary Tate the within note, Farmers Exchange Bank, F. V. Ross, Cashier."
The petition alleges the Farmers' Exchange Bank of Chula, Mo., at the time in question, was a corporation duly organized under the laws of Missouri, and located at Chula, Livingston county, in said state; that it was engaged in conducting a general banking business until the 20th day of August, 1927, at which time its property and assets were placed in the hands of the commissioner of finance of the state, for the purposes of liquidation; that more than $200,000 in money and property, including the fund in question, passed into the hands of said commissioner from said defendant bank; that on the _____ day of _____, 1927, the said commissioner appointed defendant Raymond Russell, special deputy commissioner, as his agent for the liquidation of the affairs of the said defunct bank; that said deputy commissioner of finance and the said special deputy received from said bank all of its property and assets; that the claim upon which this action is based was duly filed with the said commissioner of finance and said special deputy, within the time required by law, and said claim was rejected and disallowed by the said commissioner and special deputy; that the same was not approved and allowed; that sixty days have elapsed since the expiration of the time fixed for filing claims against defendant bank.
For cause of action the petition alleges defendant bank, on July 26, 1927, was, or pretended to be, the owner of the note herein sued on; that on said date defendant bank, acting through its cashier, F. V. Ross, offered to sell, indorse, transfer, and convey to plaintiff the said note, and agreed to transfer and indorse same to plaintiff "and to convey to said plaintiff the legal and valid title thereto"; that, on the purchase of said note, as aforesaid, plaintiff paid defendant bank the sum of $4,447.90, which was received by said bank "in consideration for which the defendant Farmers Exchange Bank agrees to sell, transfer, deliver and convey said note of W. C. Cullison and Marie Cullison, aforesaid, and the legal and valid title thereto, to this plaintiff." That the amount so paid was the purchase price of said note and was the consideration moving and coming from plaintiff to said defendant bank for the purpose, and became trustee of said money; that F. V. Ross, cashier of defendant bank, and for and in its behalf, transferred, endorsed and assigned said note to plaintiff, and pretended to transfer all the right, title, interest and ownership of defendant bank in and to said note to plaintiff.
The said note, with the indorsements thereon, is set out in the petition, and it is alleged defendant bank received and placed said sum in its assets and still retains the same; that the cashier "who endorsed, assigned and transferred said note to this plaintiff, did so without the authority of the board of directors of said defendant bank; that said cashier had no authority from the board of directors of said bank to sell, transfer and indorse said note * * * to this plaintiff, as required by sections 11752 and 11762, of the revised statutes of Missouri, 1919; and this plaintiff never became the legal holder and owner of said note, nor did the said defendant bank; nor has said defendant bank legally transferred said note to this plaintiff, and plaintiff never has received anything of value" for said sum so paid; that no part of said note has ever been paid.
The petition further alleges that defendant bank received said money without consideration, and has given nothing to plaintiff in return therefor; that said money was so paid and received by said bank as agent and in trust for the purposes aforesaid; that the purpose for which it was received by said bank has not been carried out, and that the same does not equitably belong to said bank, nor to its assets and should not be withheld from plaintiff by defendants; that the money so paid went into the general funds of defendant bank and was commingled with its assets and that the assets of the bank should be impressed with, and are subject to, a lien in favor of plaintiff for said amount; that said sum was to be used for a specific purpose, which said purpose was not carried out by defendant bank.
The petition alleges there was turned over to the commissioner of finance, and said deputy, assets of defendant bank aggregating more than $200,000, including the identical money sued for, and commingled therewith; and that plaintiff is entitled to have a lien impressed on said assets in her favor, with interest from July 26, 1927. The petition states plaintiff "does here and now deposit with the clerk of this court for the Farmers Exchange Bank of Chula, Missouri," and the other defendants the said note, and offers to, and does, return the same to defendants, upon the allowance and payment to plaintiff out of the assets of said bank of the said sum due her. The prayer asks the sum of $4,447.90, with 6 per cent. interest from July 26, 1927, and that the same be declared a lien on the assets and property of defendant bank; and that plaintiff's claim be allowed and adjudged to be a preferred claim.
The answer filed in behalf of all the defendants admits their status as alleged in the petition; that the affairs of defendant bank were placed in the hands of the finance department of the state, as alleged by plaintiff; that the claim filed as stated in the petition was rejected and disallowed, and as to all other allegations of the petition the answer makes general denial.
As affirmative defense defendants state they have no information as to whether or not F. V. Ross, cashier of defendant bank, was properly and legally authorized to sell and assign the promissory note in issue; that the note described in the petition is not mentioned as an asset of defendant bank, and is not in the custody, control, or possession of defendants, or either of them; that the note described in the petition is in possession of plaintiff and was never tendered to defendants, or either of them, previous to the filing of this suit or of plaintiff's claim on which this action is based; that defendants and neither of them claim any right, title, or interest in said note; that if the defendant bank has any right, title, or interest in and to said note, they are ready and willing to transfer and convey to plaintiff that interest, if any, by written indorsement upon proper order of the court. The prayer is for an order and judgment of the court, authorizing defendants Cantley and Russell to transfer to plaintiff, by proper written indorsement, any right, title, or interest defendant bank may have in said promissory note, if any title, interest and right be found in plaintiff.
The reply is a general denial and also denies title to said note can now be given to plaintiff; that defendants have no power at this time to give plaintiff title to the same, nor can the court adjudge and decree title thereto in plaintiff; that at the time the plaintiff purchased said note, the makers thereof had made a financial statement to defendant bank, upon the truthfulness of which statement plaintiff purchased said note; that said...
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