The State ex rel. Roberts v. Trimble

• Decision Date: 31 December 1926
• Docket Number: 27379
• Citation: 289 S.W. 796,316 Mo. 354
• Parties: The State ex rel. J. N. Roberts v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

289 S.W. 796

316 Mo. 354

The State ex rel. J. N. Roberts v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 27379

Supreme Court of Missouri

December 31, 1926

Record quashed.

Kitt & Marshall for relator.

(1) The finding made a conclusive case for relator, for money had and received by the bank for his use and benefit, being the cause of action set out in the second count of relator's petition. The judgment of the Court of Appeals should have been for relator. This case is controlled on the facts and law by the case of Johnson-Brinkman Co. v. Bank, 116 Mo. 567. The opinion of the Court of Appeals conflicts therewith. (2) The opinion of the Court of Appeals, holding the bank not liable to relator for money had and received being the basis of the second count of relator's petition, because there was no agreement shown, as alleged in the third count of relator's petition, whereby the bank agreed to pay the checks of Evans, issued on the bank, for stock purchased by Evans, conflicts with and is contrary to the following controlling decisions of this court, which hold that it is not necessary to show a contract or that privity of contract exist in order to maintain a suit for money had and received. Johnson-Brinkman Co. v. Bank, 116 Mo 567; Clifford Banking Co. v. Donovan Comm. Co., 195 Mo. 289; Tamm v. Kellogg, 49 Mo. 120. (3) The sale by relator, of his hogs was a cash sale; the taking of Evans' check was conditional and was not payment unless the check was paid. The title to the hogs did not pass from relator to Evans until paid for, even though the property was delivered. Johnson-Brinkman Co. v. Bank, 116 Mo. 570.

D. E Adams and Reed, Davis & Ashby for respondents.

With the case as it stands before this court, respondent, as did the Court of Appeals, recognizes the law as set forth in the case Johnson-Brinkman v. Central Bank, 116 Mo. 558 and insists that the Court of Appeals was right in the statement in the opinion that the facts presented are essentially different in these cases from those with which we are dealing in the present case.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Certiorari, whereby relator seeks to have quashed, because of alleged conflict with the rulings of this court, the opinion and judgment of the Kansas City Court of Appeals in the certain cause, entitled, "J. N. Roberts, appellant, vs. Nettleton Bank, respondent," appealed to the latter court from the Circuit Court of Caldwell County. The opinion of the Court of Appeals, to which (as we have uniformly ruled) we must look for the evidentiary facts in every certiorari proceeding grounded on alleged conflict of opinion, is as follows:

"This is an action to recover on a check given plaintiff by one J M. Evans on defendant bank, in the sum of $ 1083.25, the purchase price of 55 head of hogs bought from plaintiff by said Evans.

"The facts are that defendant is a banking corporation engaged in business at the town of Nettleton, Caldwell County, Missouri, and plaintiff is a farmer and stock man living about ten or eleven miles from Nettleton. J. M. Evans, drawer of the check, for many years prior to December, 1921, was engaged in buying and selling live stock and grain which he shipped to various markets. For ten or twelve years prior to the circumstances giving rise to this controversy, Evans was a customer of defendant bank, maintained an account therein, which he checked against in payment for stock and grain purchased, as well as in payment for his personal indebtedness generally. His account with the bank was active and, at times, his transactions ran as high as $ 168,000 in one year.

"On or about August 10, 1922, Evans bought a carload of hogs, consisting of 73 head, from parties in the vicinity of Mooresville in Caldwell County, of which 55 head were purchased from J. N. Roberts, plaintiff herein, and in payment therefor Evans gave his individual check on the defendant bank for $ 1083.25. Plaintiff deposited said check in his bank at Chillicothe, Livingston County, Missouri, and it passed through regular channels to the National Reserve Bank at St. Louis, and by that bank was forwarded to the defendant bank, where payment was refused for insufficient funds, and protested.

"At the time of the presentation and protest there was a balance of $ 443.19 to the credit of Evans in defendant bank. It had been the custom of Evans on the shipment of stock to draw a draft, bill of lading attached, on the commission firm to whom the shipment was consigned and to have the draft deposited to his credit in defendant bank. In the present instance, Evans drew a draft for $ 1,000 on the commission firm in St. Joseph, Missouri, to whom the carload of hogs was consigned, which draft was passed to Evans's credit in defendant bank on August 11, 1922. Against his balance in the bank, Evans drew his check in favor of plaintiff in the sum specified. The check was not presented for payment until a few days later when, by the payment by the bank of other checks drawn against said account by Evans, the amount to Evans's credit was $ 443.19, as stated. Afterwards, on August 19, 1922, Evans deposited $ 340 to his account in cash, this sum being the balance for the sale of said carload of hogs. Demand was made upon defendant for the payment of the Roberts check which was refused. The testimony shows that the car of hogs in which those bought from plaintiff were shipped sold for more money than Evans had checked on defendant bank and for more than the entire shipment had cost. This suit followed.

"The first amended petition is in three counts, the first of which alleges that defendant received the proceeds of the sale of the hogs in question, with knowledge that the proceeds belonged to plaintiff, and that defendant wrongfully, unlawfully and fraudulently converted said money to its own use. The second count alleges that the bank was indebted to plaintiff in the sum of $ 1083.25 for money had and received by the bank with knowledge that it was for the use of plaintiff, and that the bank refused to pay same to plaintiff on demand. The third count alleges a verbal contract between Evans and defendant bank whereby defendant agreed to pay checks drawn by Evans on defendant in payment for live stock, grain, etc., purchased by him in the course of his business; and that plaintiff, by virtue of the check given by Evans in payment for the said 55 head of hogs purchased of him by Evans, was a beneficiary of said contract and thereby was entitled to recover from defendant the amount of the check in question.

"The answer is, first, a general denial, and further a specific denial of the contract with Evans alleged in the petition, and, second, an averment that even if such contract were made, it was ultra vires and void and affords no basis for recovery.

"Plaintiff's reply alleges that defendant, by and through its officers, permitted Evans to give checks on defendant bank for live stock and grain bought by him and knew that the checks so given would have to be paid by it in order for the sellers of live stock and grain so bought by Evans to get their money; that the proceeds of plaintiff's hogs, having been deposited in defendant bank, with knowledge of said facts, defendant is estopped from denying liability upon the check in question.

"By agreement, the cause was referred to Thomas H. Hicklin, as referee, to take the evidence, make findings of the law and facts, and report the same to the court, together with the evidence. On November 11, 1924, the said referee filed his original report in which judgment for defendant was recommended, based upon findings of fact and conclusions of law, as follows:

"'I find that the witness Evans bought plaintiff's hogs and gave plaintiff a check on defendant bank for $ 1083.25, which check was dishonored and protested and payment refused by defendant on the 16th day of August, 1922, the reason given for such refusal, by said defendant, being insufficient funds to the credit of Evans.

"'As to the contract pleaded in the third count of the petition, I find the evidence adduced insufficient to support a finding that there was such a contract. I find this, taking Mr. Evans's testimony alone, even if I disregarded that of the bank officers.

"'I find that Mr. Evans gave many checks beginning long before December, 1921, and continuing up to August, 1922, which were cashed by defendant at times when Evans had no money on deposit in the bank, or that were greatly in excess of his deposit, and that Evans generally gave his checks without stating on the check for what it was given. That the bank had failed to pay no checks of Evans prior to the check in suit.

"'I find that the officers of defendant had no actual knowledge that Evans had bought hogs and given check to plaintiff.

"'I find that the witness Evans was one of the heavy customers of defendant and had been for many years; that he only had one account out of which he checked for both his business and living expenses, and that he was insolvent in December, 1921, and thereafter, and this was well known to the bank, and that the officers of defendant knew that the deposits made by Evans came from the sale of live stock or grain.

"'I find that on the 16th day of August, 1922, at the time the check was protested, Evans did not have sufficient funds on deposit with defendant to pay same.

"'As conclusions of law from the above facts I find that defendant was within its legal rights in refusing to pay the check given by Evans to plaintiff.'

"Exceptions to the report of the referee were filed by plaintiff and embraced the objection that there was error in the findings of fact that evidence of the contract pleaded in the third count of the petition...