Union House Furnishing Co. v. National Bank of Commerce

• Decision Date: 08 November 1932
• Docket Number: No. 22036.,22036.
• Citation: 53 S.W.2d 1067
• Parties: UNION HOUSE FURNISHING CO. v. NATIONAL BANK OF COMMERCE IN ST. LOUIS.
• Court: Missouri Court of Appeals

53 S.W.2d 1067

UNION HOUSE FURNISHING CO. v. NATIONAL BANK OF COMMERCE IN ST. LOUIS.

No. 22036.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Report."

Action by Union House Furnishing Company against the National Bank of Commerce in St. Louis. From judgment for defendant on directed verdict, plaintiff appeals.

Affirmed.

Jourdan & English and Roland F. O'Bryen, all of St. Louis, for appellant.

Samuel H. Liberman and Frank B. Coleman, both of St. Louis, for respondent.

SUTTON, C.

This is an action to recover from defendant bank the face amount of several checks, aggregating $1,677.55, drawn by plaintiff on defendant bank, payable to the order of the Commercial Casualty Insurance Company. The checks were drawn by the plaintiff, and delivered to Howard Cole, an agent of the insurance company, in payment of premiums on insurance policies contracted for by plaintiff with said Howard Cole and to be issued and delivered to plaintiff. The policies covered plaintiff's customers, who had made purchases of goods from plaintiff on the installment plan, insuring against sickness and accident incapacitating them so that they were unable to make payments on their purchases. At the times these checks were drawn plaintiff had sufficient money on deposit in the defendant bank to pay the checks. The checks were indorsed by Howard Cole, as follows: "Commercial Casualty Insurance Company, by Howard Cole, Manager." On such indorsements, the defendant bank paid the checks and charged the same to plaintiff's account.

The cause was tried to a jury. At the close of the whole case the court directed a verdict for the defendant. Judgment was given accordingly, and plaintiff appeals.

Plaintiff assigns error here upon the action of the court in directing a verdict for defendant.

All of the evidence in the case concedes that Howard Cole was the resident agent of the Commercial Casualty Insurance Company, authorized and empowered to solicit insurance, collect the premiums thereon, and deliver the policies issued by the company. He was authorized to collect the premiums in cash, or by means of checks made payable to himself, or checks made payable to the company. He had no express authority, however, to indorse checks made payable to the company. It was his duty to remit the premiums to the company, but was allowed to deduct his commissions therefrom.

In Indemnity Mutual Marine Assurance Co. v. Powell & O'Rourke Grain Co., 216 Mo. App. 673, 271 S. W. 538, 539, this court held that where an insurance company's agent, authorized to receive checks made payable to the company in payment of premiums, received such checks and obtained the money on them, the fact that he wrongfully indorsed the checks did not destroy the effect of the checks as payment by the insured, even though the agent failed to account to the company for the money. In that case the court quoted, with approval, from Burnstein v. Sullivan, 134 App. Div. 625, 119 N. Y. S. 317, 319, as follows: "Where a debtor delivers his check to the creditor or his agent duly authorized to receive it, and has funds in the bank to meet the check, the transaction as between the debtor and the creditor should be treated as a payment precisely as though cash had been paid, even though the agent forges an indorsement and steals the money."

The court further quoted, with approval, from Morrison v. Chapman, 155 App. Div. 509, 140 N. Y. S. 700, as follows:

"It is no answer to plaintiff's claim to say that Cooper had no authority to indorse defendants' name upon the checks, and that his act in doing so was without his actual or apparent authority. If money had been paid to him, and he had stolen the money, that act would still have been without the scope of his authority, and still the loss would have fallen upon defendants and not upon the plaintiff. `The principal cannot so easily evade liability for the acts of his agent.' Birkett v. Postal Telegraph Cable Co., 107 App. Div. 115, 117, 94 N. Y. S. 918, affirmed 186 N. Y. 591, 79 N. E. 1101.

"The underlying principle, which is well settled, is that, having put Cooper in a position to perpetrate the wrong, the defendants, and not plaintiff, must suffer the loss. Wilmerding v. Postal-Telegraph Cable Co., 118 App. Div. 685, 103 N. Y. S. 594; affirmed 192 N. Y. 580, 85 N. E. 1118; Birkett v. Postal-Telegraph Cable Co., supra."

Again the court quoted, with approval, from Sage v. Burton, 84 Hun, 267, 32 N. Y. S. 1122,...