Universal Carloading & Distributing Co. v. South Side Bank

• Decision Date: 07 April 1930
• Citation: 27 S.W.2d 768,224 Mo.App. 876
• Parties: UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY, RESPONDENT, v. SOUTH SIDE BANK, APPELLANT
• Court: Kansas Court of Appeals

27 S.W.2d 768

224 Mo.App. 876

UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY, RESPONDENT, v. SOUTH SIDE BANK, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1930

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

Garrett & Ruark for respondent.

Fred A Boxley for appellant.

BOYER C. Barnett, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

Plaintiff sued defendant to recover the total sum of $ 568.53 alleged to be the aggregate amount of ten checks made payable to plaintiff and which were wrongfully indorsed by plaintiff's employee and collected from the drawee banks by the defendant.

The sufficiency of the petition is questioned and for that reason it will be set out in full with the exception of the introductory paragraphs alleging corporate capacity of plaintiff and defendant. All the balance of the petition reads as follows:

"Plaintiff, for its cause of action states that one Nan Brown, at all times hereinafter mentioned, was in the employ of plaintiff in the capacity of bookkeeper and stenographer, and as such had no authority to make, sign or endorse any checks for account of plaintiff or to collect the funds due or payable thereon; that between June 20, 1927, and August 3, 1927, the said Nan Brown, without authority, knowledge or consent of plaintiff, and against its interest, endorsed the name of plaintiff and of its office manager, A. C. Sampson, on certain checks payable to plaintiff listed and described in Exhibit 'A' attached hereto, and presented said checks so endorsed by her to defendant bank for credit to her personal account and defendant bank did credit said checks, amount to five hundred sixty-eight and 53/100 ($ 568.53) dollars to the personal account of the said Nan Brown, which said sum has not, nor has any part thereof, been received by the plaintiff; that said sum has been paid to the defendant bank by the banks upon which said checks were drawn. Plaintiff further states that the endorsements of said checks by the said Nan Brown with the name of plaintiff and its office manager were forgeries and were made by her without any kind or character of authority from plaintiff, without warrant in law, and without the knowledge or consent of plaintiff. Plaintiff states that it has demanded of said bank the payment of said sum so credited and paid to the said Nan Brown on forged endorsements of said checks but defendant has not paid the whole or any part thereof to plaintiff.

"WHEREFORE, Plaintiff prays judgment for the said sum of five hundred sixty-eight and 53/100 ($ 568.53) dollars, and its costs herein expended, with interest at the rate of six per cent from September 20, 1927, and its costs herein expended."

Exhibit 'A' referred to is also set out in the record giving the date, name of the drawer, and the amount of each check.

The demurrer to the petition was overruled. Defendant filed answer in the nature of a general denial. A jury was waived and the case tried before the court. Upon conclusion of the evidence for plaintiff, defendant demurred thereto, was overruled, and offered no evidence. The court, on the 25th day of May, 1929, entered judgment in favor of plaintiff and against defendant in the sum of $ 625.36. In due time and proper manner defendant perfected its appeal, and now assigns these errors: (1) The petition fails to state facts sufficient to state a cause of action against defendant. (2) The court erred in overruling the demurrer to the evidence. (3) Under the pleadings and evidence the court erred in finding that the defendant was indebted to plaintiff in the amount of the judgment.

The evidence was brief and in substance shows the following facts. Plaintiff was conducting business at Kansas City; it had employed a dictaphone operator and stenographer by the name of Nan Brown; her duties were the writing of letters and some work as a telephone operator; that she had nothing to do with checks and money received for services rendered by the company; that she had no authority to indorse checks, and that she was not bonded. Ten separate checks payable to plaintiff showing the name of the maker, the date and the amount of each were identified and the total amount of them was $ 568.53. The evidence shows that plaintiff never received payment of any sum on any of these checks. All of these checks bear the following indorsement:

"Universal Carloading & Distributing Co.,

"A. C. Sampson,

"Nan Brown."

And also this indorsement:

"Pay to the order of Commerce Trust Co.

"South Side Bank."

The evidence showed that A. C. Sampson was the office manager for plaintiff; that he did not indorse or authorize indorsement of his signature on the checks; that the writing resembled that of the clerk, whose signature upon said checks was in her handwriting. The evidence further showed that the branch manager, Mr. Fraser, and the office manager, Mr. Sampson, indorsed checks due plaintiff with an authorized rubber stamp as follows:

"Pay to the order of

"Commerce Trust Co.

"804 Kansas City, Mo. 804

"Universal Carloading & Distributing Co.

"Baldwin Universal Company."

That there was a rubber stamp of a single line bearing the name, Universal Carloading & Distributing Company, kept upon the desk of the stenographer for her use in signing receipts for mail and telegrams, and when so executing receipts she would stamp the name and write her own name under it; that the stamped indorsement upon the checks was not an authorized indorsement stamp of the company. It was admitted that all these checks were deposited in defendant bank to the credit of Nan Brown, and that the money was collected from the drawee banks by the defendant and credited to her personal account. The checks were deposited and collected in June, July, and August. It was further shown that the employee opened a small part of the mail; that she did not assist Mr. Sampson in handling checks and accounts, nor do any bookkeeping; that she had previously taken checks and before discovery had replaced the checks with cash; that it was unusual for remittances in cash to come in thru the mail; that it was first discovered early in September, 1927, that this clerk had been taking checks belonging to the company; that after the loss was discovered the employee was called in, confessed, and when asked whether she could pay it said she had nothing, and no further demand was made upon her, and there was no effort to prosecute her. The cashier, the assistant cashier, the office and branch managers of plaintiff were bonded employees, but the clerk in question was not bonded. Credit was not given to the various drawers of the checks that were introduced in evidence on the amount of their bills, but their accounts remained uncredited. It further appears that plaintiff did not maintain an account in defendant bank and was not transacting business with it; that on one occasion cash was laid on the desk of the manager with a customer's bill as though it had come in the mail which caused him to take notice of the irregularity of the proceeding and he spoke to Miss Brown about it; she explained that it came in the 11:30 mail while everybody was out to lunch; this caused comment at the time, but there was only one instance of the kind; that the one-line rubber stamp bearing the name of plaintiff was not used or authorized to be used for the purpose of indorsing checks, but was only to be used and authorized to be used for the purpose of signing for mail and telegrams. That was in substance plaintiff's evidence, and defendant introduced none.

OPINION.

Does the petition contain sufficient facts to constitute a cause of action? It is contended by appellant that plaintiff had only two remedies, one against its customers, the drawers of the checks; the other against defendant on the ground of conversion, and that the petition is insufficient in averments to constitute such a cause of action, for the reason that it fails to allege that plaintiff was in possession, or entitled to possession, of the checks in question, and that there is no specific charge of conversion in this case.

Under the authorities in this State it is apparent that appellant is correct in its view that the petition is insufficient to state a cause of action against defendant for conversion. [Welch v. Diehl's Estate, 278 S.W. 1057, 1058 and cases cited.] It does not follow that plaintiff had no other remedy than that indicated by appellant, nor that the petition is insufficient to entitle plaintiff to recover as for money had and received. The petition is cast in a cramped frame, the averments are meager, and it may be said to be lacking in specific and definite statements of ownership on the part of the plaintiff and of obligation on the part of defendant. However, the case was tried upon the theory that plaintiff was the owner of the checks in question and was entitled to their possession and to the proceeds of their collection. The trend and course of the examination of witnesses by defendant's counsel treats the whole subject as though plaintiff were the owner of the checks and sustained a loss on account of the matters which transpired. We believe plaintiff's petition, aided by evident intendments, sufficient to support an action for money had and received. There was no motion to make it more definite and certain. It is specifically alleged that the checks were payable to plaintiff; that plaintiff's agent, without authority, indorsed the name of plaintiff and its office manager on said checks; that said checks were deposited in defendant bank, and that credit for the amounts thereof was given to the individual depositor, and that the sum represented by all the checks had...