Treece State Bank v. Wade

• Citation: 283 S.W. 714
• Decision Date: 22 April 1926
• Docket Number: No. 3940.,3940.
• Parties: TREECE STATE BANK v. WADE et al.
• Court: Missouri Court of Appeals

283 S.W. 714

TREECE STATE BANK v. WADE et al.

No. 3940.

Springfield Court of Appeals, Missouri.

April 22, 1926.

Rehearing Denied May 18, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Suit by the Treece State Bank against Thomas L. Wade and another. From a judgment for plaintiff against defendant Jones, but in favor of defendant Wade, plaintiff appeals. Reversed and remanded, with directions.

Stephens & Dresia, of Columbus, Kan., and McReynolds & Blair, of Joplin, for appellant. S. C. Westcott, of Galena, Kan., and Owen & Davis, of Joplin, for respondents.

BRADLEY, J.

Plaintiff sued to recover for checks cashed, and on an agreed statement of facts the court found for plaintiff against defendant Jones, but found in favor of defendant Wade. Plaintiff filed motion for a new trial, but was overruled, and this appeal followed.

Plaintiff's petition is as follows:

"Comes now the plaintiff and for its cause of action against the defendants, and each of them alleges and avers:

"(1) That the plaintiff is a banking corporation duly organized, existing, and doing business under and by virtue of the laws of the state of Kansas, with its banking house and principal place of business at Treece, Cherokee county, Kan. That neither of the defendants reside in the state of Kansas.

"(2) That the defendant Thomas L. Wade, at all times herein mentioned, owned and operated a mine, mining mill, and plant in Cherokee county, Kan., and was doing business as Wade Mining Company. That the defendant H. B. Jones is, and was at all times referred to herein, the authorized and acting agent of said Thomas L. Wade in handling the mining business referred to herein, and resides in the city of Joplin, Mo.

"(3) That the said defendant Thomas L. Wade, doing business as Wade Mining Company, operated said mining plant in Cherokee county, Kan., as aforesaid, and, as aforesaid, had in its employ, as its duly authorized and acting agent, employee, manager, or superintendent the said defendant H. B. Jones. That said defendants did their banking business in the Bank of Quapaw, Ottawa county, Okl., and paid its said employees by check drawn on the said Quapaw Bank. That on April 15, 16, and 17, 1923, the defendant Thomas L. Wade, by and through said duly authorized and acting agent, servant, and employee, H. B. Jones, gave to its employees, hereinafter set out in Exhibit A, checks totaling the sum of $544.30. That within a day or two thereafter and in due time, the exact date plaintiff does not know and cannot state, the holders of said checks presented them at the banking house of this plaintiff, and, upon indorsement by said payees of said checks, this plaintiff paid out and bought said checks from said holders, and thereby became the owner and holder of said checks in due course and entitled to the fund of said defendants, in said Bank of Quapaw in the amounts shown on said checks and hereinafter set out in Exhibit A, in the total sum of $544.30, as aforesaid. That said checks, "so given as herein alleged, were drawn by said H. B. Jones, as the duly acting agent of defendant Thomas L. Wade, and were given by said agent on the fund belonging to said defendant Thomas L. Wade, and were for benefits received by said defendant Thomas L. Wade.

"(4) That thereafter, and in due course of business, this plaintiff sent said checks to Baxter Springs, Kan., and same were sent by United States mail to said Bank of Quapaw for plaintiff to receive credit thereon. That said checks were stolen from the mail in transit between Baxter Springs, Kan., and Quapaw, Okl., have never been returned or, found, and are therefore lost, and plaintiff cannot account for same.

"(5) That plaintiff cannot set up copies of said checks for the reason hereinbefore stated, but alleges that the dates upon which said checks were drawn, by whom drawn, the last indorsement on same, the bank upon which drawn, and the amounts are set out in said Exhibit A.

"(6) That thereafter defendants wrongfully, fraudulently, and unlawfully withdrew from said bank their deposit to cover said checks and on which they drew said checks, and have wholly failed, neglected, and refused to pay plaintiff the amount it paid for said checks, although due demand has been made for payment of same.

"Wherefore plaintiff prays judgment against the defendants, and each of them, in the sum of $544.30 with interest at the rate of 6 per cent. per annum thereon from the 17th day of April, 1923, and for the costs of this action."

Exhibit A contained the information as alleged in paragraph 5 of the petition. Defendant Wade, for answer, filed a verified general denial, which was treated as a plea of non est factum, but defendant Jones did not answer.

The agreed statement of facts is as follows:

"It is agreed by and between the parties hereto that this suit is instituted on checks mentioned in petition; that the evidence in said cause would show, and that the facts are, as follows: That plaintiff is a corporation as alleged in the petition; that defendant Wade owned and operated the mine in Kansas mentioned in the petition at the times alleged in the petition; that defendant Jones was the mining superintendent in charge of said mine for defendant Wade, and had full charge of the employing and paying off the men working at said mine and of the handling of the funds necessary therefor; that the various payees of the checks mentioned in plaintiff's petition and Exhibit A attached thereto were employees at said mine; that the course of business adopted by said Wade in operating said mine was to transmit to and deliver to said Jones such sums of money as said Jones reported as necessary for payment of expenses thereof; that, at the time the checks mentioned in plaintiff's petition were issued, said Wade had transmitted to and delivered to...