Thomson v. Bank of Gerster, 5384.

• Decision Date: 24 August 1934
• Docket Number: No. 5384.,5384.
• Citation: 74 S.W.2d 74
• Parties: THOMSON v. BANK OF GERSTER et al.
• Court: Missouri Court of Appeals

74 S.W.2d 74

THOMSON v. BANK OF GERSTER et al.

No. 5384.

Springfield Court of Appeals. Missouri.

August 24, 1934.

Appeal from Circuit Court, St. Clair County; W. L. P. Burney, Judge.

"Not to be published in State Reports."

Action by W. H. Thomson against the Bank of Gerster and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

J. E. Crook, of Osceola, and Herman Pufahl, of Bolivar, for appellants.

Dewey P. Thatch, of Osceola, for respondent.

BAILEY, Judge.

This is an action by a depositor of the Bank of Gerster against the bank and the finance commissioner of the state of Missouri, in charge of the affairs of said bank for liquidation, to establish a preferred claim in the sum of $600. The trial court held that claimant was entitled to a preference in that amount, less the sum of $210, being plaintiff's share of a dividend declared after the institution of this suit. Judgment was accordingly rendered allowing a preference in the sum of $390, and defendants have appealed.

The facts upon which the claim for a preference is based are substantially as follows: The Bank of Gerster closed its doors and placed its assets in the hands of the commissioner of finance on the 14th day of February, 1931; claimant, plaintiff herein, was at that time, and had been for several years, a patron and depositor of said bank; on the 13th day of February he had a checking account and also a time deposit therein, both of which aggregated the sum of $806. On that date, which was the last day the bank was open, claimant went to the bank for the purpose of withdrawing his money, and so informed the cashier, Mr. Polson. Thereupon the cashier informed claimant that $7 or $8 was all he could pay him; that claimant refused to take so small an amount, and, after some conversation, the cashier informed claimant that the bank had $7,000 or $8,000 in the Commerce Trust Company at Kansas City; that, if claimant would transfer his time deposit to his checking account, he (the cashier) would issue claimant a draft on his check. Plaintiff testified as to what then took place as follows: "I gave him that time deposit and he wrote me out a deposit slip for that time deposit, Five Hundred Ten Dollars ($510.00), the Five Hundred Dollars ($500.00) principal and Ten Dollars ($10.00) accrued interest, and my checking account was approximately Eight Hundred Six Dollars ($806.00) after I gave him that time deposit slip so he talked on quite a bit, ten or fifteen minutes. I was considerably worried, I did not know what to do and he says, `How much are you going to tell me to write this draft for?' He says, `Don't take it all out, leave me part of it.' He did not want to do anything that would get himself in bad; in other words, he wanted to keep the Bank and keep his name clear. Now that is the reason I did not take out Eight Hundred Six Dollars ($806.00), because Mr. Polson suggested to leave part of it there. We talked quite a while about it and we compromised on that amount. * * * This Six Hundred Dollars ($600.00) draft was issued after I had deposited the Five Hundred Ten Dollars ($510.00) referred to in the time certificate. I just wrote out a check on the Bank of Gerster on my checking account for the full amount of Six Hundred Dollars ($600.00). The purpose of going in there was to withdraw my account; get it out of there. I considered the draft good or I would not have taken it. It was presented to the Commerce Trust Company the morning of the 14th. It was not paid. The reason given for non-payment was on this slip and read, `Drawing Bank is Reported Closed.'"

The cashier testified that on the day...