The State ex rel. Commonwealth Trust Company v. Reynolds
| Citation | 213 S.W. 804,278 Mo. 695 |
| Parties | THE STATE ex rel. COMMONWEALTH TRUST COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals |
| Decision Date | 25 June 1919 |
| Court | United States State Supreme Court of Missouri |
Preliminary writ quashed.
Jeffries & Corum, Moses N. Sale and David Goldsmith for relator.
(1) The opinion of the St. Louis Court of Appeals is in conflict with the decisions of this court in the cases of Hennessy v Bavarian Brewing Company, 145 Mo. 104; Keele v Railroad, 258 Mo. 62; Baerveldt Construction Company v. Bagley, 231 Mo. 157. (2) It conflicts with Finlay v. Bryson, 84 Mo. 671; Henderson v. Koenig, 192 Mo. 719. (3) It is based upon a misconception of, and is repugnant to, the rulings of this court in Sidway v. Mo Company, 187 Mo. 649 and Mo. Pac. Ry. Co. v. Continental Nat. Bank, 212 Mo. 505. (4) It conflicts with the opinion of this court in Johnson v. Smith's Admr., 27 Mo. 591; Shelby County v. Bragg, 135 Mo. 291; Landis v. Saxton, 105 Mo. 486. (5) It conflicts with the rulings of this court in Rutledge v. Mo. Pac. Ry. Co., 123 Mo. 140; Finnegan v. Railroad, 244 Mo. 662; Chandler v. Railroad, 251 Mo. 602.
Dawson & Garvin for respondents.
(1) The decision does not go beyond the constitutional pecuniary jurisdiction of the St. Louis Court of Appeals. Schwyhart v. Barrett, 223 Mo. 502; Baerveldt Construction Co. v. Bagley, 231 Mo. 157; January v. Harrison, 199 S.W. 935; Rourke v. Holmes St. Ry. Co., 257 Mo. 555; Keleher v. Johnson, 272 Mo. 702. The fact that at the date of the decision of the Court of Appeals so much interest had accrued that, added to the amount claimed in the petition, it would exceed $ 7500, did not oust jurisdiction. The general rule is that when jurisdiction has once attached it will not be ousted by subsequent change in conditions, including amount of claim. Kirby v. Am. Soda Fountain Co., 194 N.S. 141, 146; Cooke v. United States, 2 Wall. 218; State ex rel. Long v. Ellison, 199 S.W. 984. "Where the decision of a Court of Appeals is brought in review by a writ of certiorari, on the ground that said court has refused to follow the last previous ruling of the Supreme Court, what the evidence was in the case decided by the Court of Appeals will be ascertained from what the judges thereof say in their written opinion it was, and not from an examination of the record and abstract in that case." State ex rel. United Ry. Co. v. Reynolds, 257 Mo. 19; Shelby County v. Bragg, 135 Mo. 296; Landis v. Saxton, 105 Mo. 491; Mo. Pac. Ry. Co. v. Bank, 212 Mo. 519. (2) These cases respectively apply the Statute of Limitations to their particular facts. They were not upon such questions of law as the Court of Appeals had before it for decision in the case at bar. The Supreme Court has not decided that the relation of depositor and banker could not exist under the facts in the case at bar.
In Banc
Certiorari.
Certiorari to the St. Louis Court of Appeals, directing it to send up for review the record in the case of Henry R. Strong v. Commonwealth Trust Company. In that case the plaintiff, Strong, had obtained a judgment in the Circuit Court of the City of St. Louis against the Commonwealth Trust Company. There were cross-appeals and the St. Louis Court of Appeals reversed and remanded the case with directions. It is contended by the relator here, that the opinion thus rendered contravenes certain rulings of this court.
The facts, as disclosed by the opinion, are that Strong, the plaintiff in the original suit, was the editor, publisher and owner of a trade journal in the City of St. Louis, entitled the "National Druggist." William S. Ferguson was an employee of Strong's. Ferguson's duties were those of a stenographer and bookkeeper; in addition he did general clerical work, opened the mail, receipted for cash, checks, drafts, subscriptions, and payments for advertising. From day to day he deposited the checks and drafts payable to Strong or the National Druggist. Checks and drafts received by Ferguson were required to be deposited in the Mechanics-American National Bank, with which alone Strong did his banking business. Strong's account in that bank was kept during the period covered by this suit in the name of the National Druggist. To enable Ferguson to make the deposits of the checks and drafts with the bank, Strong provided a rubber stamp which, up to and including 1908, read: "Pay to the Mechanics-American National Bank for credit of National Druggist," and subsequent to that date: "Pay to the Mechanics-American National Bank for the credit of Henry R. Strong." It was Ferguson's duty to deposit checks and drafts received in the course of the business during the time stated, as indicated by these stamps. He was never authorized to draw or sign checks, and he did not as to the funds in the Mechanics-American National Bank. When he received remittances he receipted for them either in the name of the National Druggist, or that of Henry R. Strong, following either with his initials "W. S. F." (never with his full name), or with the designation of treasurer or otherwise. Strong never indicated the authoritative connection of any one with his business other than himself.
During the time of Ferguson's employment, he was at his own instance listed in the St. Louis Court Directory, after his name, as "Clerk National Druggist; residence, 3527 Henrietta Street." Neither upon the letterheads, papers nor documents of the National Druggist did he appear as an officer or otherwise. He kept in the discharge of his duties while employed by Strong three books: a journal, ledger and cash book. In the journal and ledger he entered the cash, checks and drafts received, and like entries were supposedly, or should have been, entered in the cash book. About April 30, 1913, he did not appear at the office, as theretofore had been his custom, and investigation disclosed that he had absconded and was short in his accounts. It was discovered upon an examination of the books that in many instances the receipt of checks and drafts from patrons of the Druggist had been noted on the ledger, but that no corresponding entries had been made on the cash book. Further investigation disclosed that these checks and drafts had been cashed by Ferguson, as evidenced by the canceled checks sent by the various makers to Strong during the course of the inquiry. It was developed that during the period of Ferguson's employment he was indebted to the account of the National Druggist by reason of such peculations in a sum of about $ 32,198. In the perpetration of these fraudulent conversions he had opened an account with three banking institutions, among others, the Commonwealth Trust Company, the relator here. The account opened by him with the Trust Company was in the name of the National Druggist. These deposits with the Trust Company commenced on October 17, 1907, and continued from time to time until October 29, 1908, and aggregated $ 6470.76. They were all made payable to the order of the National Druggist. In furtherance of these frauds, Ferguson had procured a rubber stamp with which the checks and drafts were indorsed when deposited by him with the Trust Company. It read: "Pay Commonwealth Trust Company, or order, National Druggist, W. S. Ferguson, Treasurer." Ferguson was never treasurer of either the National Druggist or Strong; and was never held out to be by the latter, who had no knowledge, until after Ferguson's disappearance, of these transactions; and had conferred no power, general or special, on him which would have given colorable authority to his acts in this behalf.
The Trust Company made no inquiry as to Ferguson's right to open the account with it, or to sign or indorse checks in the manner stated. During all of this time the office or place of business of the National Druggist was in the Century Building, a few blocks distant from the Trust Company, a fact that could have been ascertained from various public sources. Although the place of business of the National Druggist, as given by Ferguson on the deposit slips drawn by him, was that of his private residence, 3527 Henrietta Street, and was never the address of the National Druggist, or of Strong, as the most cursory examination would have disclosed, the Trust Company made no effort to ascertain the true facts. It simply, without any inquiry, accepted the deposits made to the National Druggist, and paid them out on checks signed by "W. S. Ferguson, Treasurer."
The examination, as stated, disclosed that Ferguson had deposited in the Trust Company funds belonging to the National Druggist, aggregating $ 6470.76, and had subsequently drawn it all out as treasurer, and had deposited it in his own name. Armed with these facts, Strong made demands in May and August, 1913, of the Trust Company for the payment to him of the amount stated. The latter refused payment. Whereupon, this suit was brought.
The petition is for money had and received, the amount claimed being $ 6470.76.
The answer admits all of the formal facts heretofore stated in regard to the opening of the account with it by Ferguson, in the name of the National Druggist, the aggregate amount of same, and that it was drawn out by him as treasurer. All other facts are denied.
The Trust Company pleaded further, in defense that the relation of Ferguson to the National Druggist and to Strong as business associate, cashier, bookkeeper, treasurer, and general agent was such as to authorize him to make the deposits and draw them out as disclosed by the facts; that if any loss was occasioned, it was due to the carelessness and negligence of Strong in his grant of unlimited authority to Ferguson and his neglect to examine the condition of the latter's accounts; that Strong was...
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