Third Nat. Bank of St. Louis v. St

• Decision Date: 10 June 1912
• Parties: THIRD NAT. BANK OF ST. LOUIS v. ST. CHARLES SAVINGS BANK.
• Court: Missouri Supreme Court

149 S.W. 495

THIRD NAT. BANK OF ST. LOUIS v. ST. CHARLES SAVINGS BANK.

Supreme Court of Missouri.

June 10, 1912.

Rehearing Denied July 2, 1912.

1. EXCEPTIONS, BILL OF (§ 320)—SIGNING—JUDGE.

Rev. St. 1909, § 3960, provides that, whenever a judge of another circuit is called to hold court in a circuit other than his own, he shall while so acting possess the same powers and be liable to the same responsibilities as the judge of the circuit. A judge of another circuit, having been called to hold a term because of the illness of the resident judge, tried a case and steps being taken for cross-appeals by both parties, time was allowed to settle a common bill of exceptions, and at a subsequent term such common bill was signed by the judge who tried the case, though the resident judge was then presiding. Held, that the bill was signed by the proper judge.

2. PLEADING (§ 381)—ISSUES AND PROOF.

Where parol evidence was admissible under a count of the complaint for money received, it could not be excluded because inadmissible under a count based on a written guaranty.

3. EVIDENCE (§ 419)—PAROL EVIDENCE—GUARANTY—CONSIDERATION.

Where a written guaranty did not purport to name all the consideration, but on its face showed that there were other considerations than those specified, the consideration clause was in the nature of a receipt and was open to explanation by parol.

4. EVIDENCE (§ 423)—WRITTEN CONTRACT—CONSIDERATION—PAROL TESTIMONY.

Though parol testimony was admissible to show all the considerations for a written guaranty sued on, it was error to admit such evidence showing that the contract was not one of guaranty at all, but that the guarantor was in fact the principal debtor.

5. BANKS AND BANKING (§ 118)—CASHIER AUTHORITY.

In the absence of statute, a bank cashier is the executive officer of the bank by whom the whole moneyed operations of the bank in paying or receiving debts, or in disposing of or transferring securities are conducted ; his acts done in the ordinary course of the business actually confided to him being regarded as prima fade within the scope of his authority.

6. BANKS AND BANKING (§ 118)—ACTS OF CASHIER—EVIDENCE.

Where the cashier of defendant bank obtained from plaintiff certain certificates of deposit in exchange for what purported to be the note of a third person, guaranteed by the bank, but which was in fact a loan to the bank, conversations between plaintiff's officers and such cashier during the negotiation of such loan were admissible in an action for money received after defendant had repudiated the authority of the cashier to negotiate the loan while still retaining the proceeds thereof.

7. TRIAL (§ 330)—VERDICT—RESPONSIVENESS TO PLEADING—SEVERAL COUNTS.

Though plaintiff sued in three separate counts based on the same transaction, it could only have one recovery.

8. BANKS AND BANKING (§ 105)—FUNCTIONS OF BANK—GUARANTY.

Defendant bank having plaintiff as its St. Louis correspondent, defendant's cashier applied to plaintiff to make a loan to B., which was refused because B. was not a customer of plaintiff, whereupon it was agreed that the loan should be made to defendant. For this purpose B. executed a note to plaintiff which it discounted, relying on defendant's guaranty, which was indorsed thereon by defendant acting through its cashier. Held, that such guaranty by defendant was not a loan of money, but a lending of defendant's credit outside the ordinary course of banking business and without the scope of the cashier's authority.

9. MONEY RECEIVED (§ 1)—NATURE OF ACTION—REQUISITES.

An action for money received, based on the doctrine of unjust enrichment, lies where defendant has received or obtained money of plaintiff which in equity and good conscience defendant ought to repay.

10. MONEY RECEIVED (§ 9)—NATURE or ACTION—RIGHT TO MAINTAIN.

Defendant's cashier, having misappropriated certain of defendant's funds, applied to plaintiff, defendant's St. Louis correspondent, to discount the note of a third person, who was insolvent, on certain insufficient collaterals. Plaintiff's officers refused to make the loan as applied for, because the applicant was not a customer of the bank, but agreed to make the loan to defendant bank, which was accomplished by the applicant executing his note therefor, which defendant's cashier guaranteed in defendant's name, receiving certificates of deposit therefor, which plaintiff thereafter paid on demand of another bank, whom it believed was a bona fide holder for value because of such holder's refusal to disclose its relationship to the certificates. Held, that plaintiff bank, being unable to recover on the guaranty for want of authority on the part of defendant's cashier to execute it, was entitled to recover on the theory of money received by defendant to plaintiff's use.

11. PAYMENT (§ 82)—CERTIFICATE'S OF DEPOSIT—RECOVERY OF PAYMENT.

Plaintiff, having executed certain certificates of deposit and delivered the same to defendant's cashier as the proceeds of a loan which he negotiated without authority and with knowledge that defendant would repudiate its liability as guarantor on the note evidencing the transaction, paid the certificates when presented by another bank after the latter had refused information as to its connection with the paper on the theory that it was an innocent purchaser for value. Held, that such payment was not voluntary and without fraud or imposition so as to preclude plaintiff from recovering the same in an action for money received.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Boone County; Nick M. Bradley, Special Judge.

Action by the Third National Bank of St. Louis against the St. Charles Savings Bank. Judgment for plaintiff on the first count of its complaint, and for defendant on the second and third counts, and both parties appeal. Reversed and remanded.

B. E. Angert and E. W. Hinton, for plaintiff. T. C. Bruere, W. M. Williams, F. G. Harris, and 0. W. Wilson, for defendant.

LAMM, J.

This is a suit with a petition in three counts, one on defendant's guaranty of a promissory note, and the other two were common counts for money loaned and money had and received; all relating to the same transaction. On an answer denying the authority of its cashier to execute the guaranty and in a trial without the aid of a jury in the Boone circuit court, plaintiff recovered on the first count $24,722.75, and the finding was for defendant on the second and third. On due steps by both litigants, with a common bill of exceptions and abstract of record, there are cross-appeals.

Plaintiff is a national bank in St. Louis, defendant a state bank at St. Charles. Since 1901, and up to October, 1904, plaintiff was (what is known among bankers) a "correspondent" of defendant in St. Louis. Between the two there was a run of business, and plaintiff generally carried a deposit for defendant, called in the record an "inactive" account; i. e., one not generally checked against. Defendant had another correspondent in St. Louis, the American Exchange Bank, where it kept an "active" account. For many years prior to October, 1904, one A. F. Mispagel was cashier and chief executive officer of defendant, on its behalf transacting all business with plaintiff.

On October 13, 1904, plaintiff, under circumstances presently presented, issued to defendant three time certificates of deposit, in their nature negotiable, each for $10,000, drawing 3 per cent. interest from date and payable 10 days after demand. These were delivered directly to Mispagel on behalf of defendant by plaintiff and were carried by him to St. Charles, were found in defendant bank, were finally indorsed by defendant over to the American Exchange Bank, demend of payment was made by the latter on November 21, 1904, and they were paid by plaintiff to the latter, as holder, and taken up in the usual course of business through the St. Louis clearing house nine days later. We will recur to this payment later. One of these certificates represented the proceeds of a check drawn by Mispagel on October 13, 1904, on the American Exchange Bank, transferring to plaintiff $10,000 from the account of defendant at that bank. The other two represented the discount of a note for $20,000. According to the form, of this note, one W. J. Baird was maker and defendant was guarantor. Baird lived in St. Charles, as did Mispagel. He was a stranger at plaintiff bank, while Mispagel was well known there. Baird was in the "grain" line. We infer in puts and calls on the grain market; that is, betting on the future price of grain. We infer, also, that Mispagel was jointly interested in some of these deals. The result was that he through Baird and otherwise misappropriated a great deal of defendant's money, and said misappropriations were covered up by false bookkeeping and similar knavish tricks coming to light a month or so after said time certificates were issued. We shall recur to those defalcations later and to Baird's apparent connection therewith.

Attending more closely to the events of October 13, 1904, on pretense that defendant's reserves needed stiffening against an expected bank examination, on that day Mispagel (taking Baird along) appeared at plaintiff's banking house, and, under circumstances presently set forth, Mispagel entered into negotiations with plaintiff's officers resulting in Baird's executing to plaintiff a promissory note of, $20,000 (the one above referred to) due in 90 days, interest at 8 per cent. from maturity, payable at plaintiff's banking house in St. Louis. To that note was attached a collateral contract in usual form, signed by Baird, pledging two certain notes to secure the principal note, one for $5,000 in which Baird was payer and said Mispagel was payee, dated October 1, 1904, due in 90 days and indorsed by said Mispagel and one Connery. The other collateral note was for $10,000 due in six months, and bore the same date as the first....