W.J. Howey Co. v. Cole
| Decision Date | 20 January 1928 |
| Citation | 4 S.W.2d 861,222 Mo.App. 1200 |
| Parties | W. J. HOWEY CO., RESPONDENT, v. COLE, SPECIAL DEPUTY COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI ET AL., APPELLANTS. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Camden County.--Hon. C. H. Skinker Judge.
AFFIRMED.
Judgment affirmed.
S. C Gill and Embry & Embry for appellants.
Ira II. Lohman for respondent.
Plaintiff filed his petition in the Moniteau county circuit court on the 14th day of April, 1922, seeking to recover on a certain time certificate of deposit purported to have been issued by the McGirk State Bank on or about the 29th day of August, 1921, in the sum of thirteen hundred dollars ($ 1300) payable six months after date to the order of one "Mark V. Packard, Trustee." The McGirk State Bank closed its doors on the 6th day of September, 1921, and defendant A. B. Cole, as Special Deputy Commissioner of Finance of this State, took charge of its affairs on the 23rd day of September, thereafter, and is now in charge thereof. This case was first tried in the circuit court of Moniteau county, where a demurrer to plaintiff's evidence was sustained and the cause then went to the Kansas City Court of Appeals on appeal by the W. J. Howey Company. The Court of Appeals reversed the judgment and remanded the cause. The opinion of that court is reported in 269 S.W. 955. Thereafter, on certiorari, the Supreme Court held the Kansas City Court of Appeals was not in conflict with any decisions of the Supreme Court and its writ theretofore issued was quashed. State ex rel. Cole v. Trimble et al., 269 S.W. 959.
Thereafter, on change of venue, the cause was transferred to the Camden county circuit court and came on for trial, to a jury, in March, 1927. At the close of all the evidence the jury, at the court's direction, returned a verdict for plaintiff and from the judgment entered thereon, defendants have appealed.
The facts are fully stated in the two opinions heretofore referred to and only a brief reference need be made thereto. The time certificate in question was issued in August, 1921, by C. T. Moore, cashier of defendant bank, at the solicitation of one Thompson, which certificate is in words and figures as follows:
C. T. MOORE, Cashier.
"Mark V. Packard, Trustee."
In June, 1921, Moore had issued several certificates of deposit, bearing different dates, to Thompson or other persons under most unusual circumstances. The pitiful story, as told by Moore, may be gleaned from a reading of the opinion by the Kansas City Court of Appeals, supra. In an effort to recover what had been lost to his bank by the issuance of the certificates in June, 1921, Moore was induced by Thompson, who evidently wielded a strange power over the erstwhile cashier, to issue a second batch of time certificates of deposit aggregating quite a large amount. The only consideration for these latter certificates was certain promissory notes which afterwards turned out to be worthless.
The evidence is clear and undisputed that all the acts of Moore in issuing both the first and second lot of certificates were done without the express authority, knowledge or consent of the board of directors of the defendant bank and that they have never in any manner ratified the issuance thereof. No money was ever deposited nor did the bank receive any benefit whatever from the transactions. It is clear from Moore's testimony that the time certificate sued on was one of the second batch issued in August, 1921, for which he received the worthless notes heretofore mentioned. This time certificate of deposit for $ 1300 was purchased prior to its maturity by plaintiff under circumstances hereinafter referred to.
Defendants contend that (1) the certificate of deposit is a forgery and therefore void; (2) that the certificate of deposit is void because not issued by authority of the board of directors; (3) and that the certificate of deposit being issued to a trustee, that fact was sufficient to impart notice, and the jury should have been permitted to pass upon the question as to plaintiff's good faith in purchasing the certificate.
All these propositions were considered by the Kansas City Court of Appeals when this case was reviewed in that court. The first point made is that the certificate of deposit is a forgery and void. The theory is that since the certificate of deposit was issued by the cashier purporting to be issued by the bank and since he had no authority to issue the certificate, it was, in effect, a forgery. There is no question but that Moore, who issued the certificates, was the managing head in charge of the conduct of the bank, duly elected and acting as cashier thereof. Had the directors authorized the issuance of the certificate sued on that certificate would no doubt have been issued by him as cashier in the same manner and form as it was issued. It could have been false only on the theory that the law did not permit the cashier to issue such a certificate without authority of the board of directors and since he did so issue it, it was not the act of the bank and therefore a forgery. In other words, if there be any merit in defendants' first proposition, it must be because the second contention advanced is tenable i. e., that the certificate is void because not issued with the consent of the board of directors of the bank. This involves a construction of section 11752, Revised Statutes 1919, which among other things provides that "No bills payable shall be made, and no bills shall be re-discounted by the bank, except with the consent of the board of directors." In construing this section the Kansas City Court of Appeals held that while it is true a certificate of deposit is regarded as a promissory note and that ordinarily promissory notes are "bills payable," nevertheless "the right of a cashier to execute and issue certificates of deposit is so well settled, and his doing so has become such a general practice and custom in the banking business of this State, that to hold that section 11752 deprives him of that right, unless the board of directors is first called to pass upon each particular transaction of the kind, would seriously interfere with the operation of banks." Substantial authority is cited in support of the court's holding that section 11752 has no application to the issuance of the certificate of deposit in this case. We agree with the views of the Kansas City Court of Appeals on this proposition. The history of the section referred to strengthens the position taken.
The provision that "no bills payable shall be made, etc., except with the consent of the board of directors" was first enacted into law in the year 1897. At the time that law was passed, section 2752, Revised Statutes 1889, was in effect, which section set out in detail the various items to be included in the sworn statement of its affairs to be made by the officers of a State bank when required by law. This form of statement lists as liabilities the following:
This section was re-enacted in 1897 containing the same provisions as above set forth. It is held that in attempting to construe a statute it is proper to take into consideration the prior state of the law on the subject and all changes therein. [Gabriel v. Mullen, 111 Mo. 110, 19 S.W. 1099.]
It is also true that statutes in pari materia are to be construed as one law. [State ex rel. v. Slover, 126 Mo. 652, 29 S.W. 718.]
With these and kindred canons of construction in mind it seems clear to us that the Legislature of 1897 never intended to place time certificates of deposit in the same category with bills payable insofar as the authority of an officer of the bank to make them is concerned. The law then in effect and the law as re-enacted at the very session of the legislature...
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