Thompson v. National Bank of Commerce

• Decision Date: 29 June 1908
• Citation: 110 S.W. 681,132 Mo. App. 225
• Parties: THOMPSON v. NATIONAL BANK OF COMMERCE et al.
• Court: Missouri Court of Appeals

110 S.W. 681

132 Mo. App. 225

THOMPSON v. NATIONAL BANK OF COMMERCE et al.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

1. JURY — RIGHT TO JURY TRIAL — NATURE OF ISSUE — RELIEF DEMANDED.

The holder of a check, payment on which had been stopped by the makers, sued the bank, and the makers intervened to defend, alleging that the check was given to plaintiff, believing wrongly that it was due him in settlement for a certain stock sale supposedly effected through interveners and their correspondents; that the stock sold was in fact of the same name, but of much higher value than plaintiff's; that plaintiff's stock had been tendered to him, with any expenses incurred; that plaintiff was insolvent; and prayed the cancellation of the check. Held that, though the makers prayed affirmative equitable relief, yet the relief was not necessary to the defense, as it appeared that the check was marked "Payment stopped," so that it could not get into the hands of a bona fide holder, and hence the makers' equitable defense should not deprive plaintiff of his right to a jury trial.

2. BILLS AND NOTES — CANCELLATION FOR INVALIDITY — MISTAKE.

Where defendant agreed to sell certain stock for plaintiff, but by mistake sold other stock of a similar name, which was worth much more, and accounted with plaintiff for the proceeds upon the basis of the more valuable stock by giving him a check therefor, in a suit on the check, when defendant intervened to have the check canceled, alleging the mistake and that plaintiff was insolvent, it is immaterial whether defendant could have avoided the mistake by exercising ordinary care, the question being whether defendant bought the stock from plaintiff at the price represented by the check, or whether they received it to sell for him, and, if the latter, defendant was entitled to the relief prayed.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Theodore R. Thompson against the National Bank of Commerce and another, in which the other defendant intervened and was made a party defendant. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Johnson & Lucas and Elijah Robinson, for appellants. Sebree, Conrad & Wendorff, for respondent.

ELLISON, J.

This action was instituted to recover of the defendant bank the amount of a check given to plaintiff by defendants Houston, Fible & Co. Houston, Fible & Co. were not made parties by the plaintiff. After action was instituted, they came into court by motion, and on their showing they were made defendants by the court. They then filed an answer. They then asked that the case be transferred to the equity docket, and that it be heard as an equity case. These requests were refused by the court. A trial was then had before a jury, when a verdict was returned for the plaintiff, upon which judgment was entered. The answer set up: That defendants were a brokerage company who sold stocks, etc., on commission; that plaintiff employed them to sell for him 30 shares of stock in the American Ice Company, and delivered the stock to them for that purpose with his blank indorsement; that they attempted to sell the stock in New York through their correspondent there, and supposed they had done so at the price of $34.25 per share,...