Whitehead v. Liberty Nat. Bank of Kansas City

• Decision Date: 06 February 1933
• Docket Number: No. 17555.,17555.
• Parties: WHITEHEAD v. LIBERTY NAT. BANK OF KANSAS CITY.
• Court: Missouri Court of Appeals

56 S.W.2d 833

WHITEHEAD v. LIBERTY NAT. BANK OF KANSAS CITY.

No. 17555.

Kansas City Court of Appeals. Missouri.

February 6, 1933.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be published in State Reports."

Action by Charles Hallock Whitehead against the Liberty National Bank of Kansas City. From a judgment for defendant, plaintiff appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Cooper, Neel, Kemp & Sutherland, of Kansas City, for respondent.

BOYER, Commissioner.

This is an action to recover damages on account of the refusal of defendant to reissue certificates for fourteen shares of its capital stock to the plaintiff. The petition alleges that the plaintiff is the owner and holder of said certificates and had been such owner since January 11, 1923, by assignment and transfer from one Duerr; that defendant is a national banking institution and formerly bore the name of Commonwealth National Bank which was legally changed to the present name of defendant; that the certificates in question were issued prior to the change of name; that on the ___ day of December, 1924, plaintiff caused his certificates of stock to be presented for the purpose of surrendering the same to defendant and requested that, in lieu thereof, new certificates be issued to him by the bank under its new name; that defendant without reason or right refused so to do. Judgment is demanded for the value of the stock at the time.

The second amended answer filed during the trial and before judgment admits that defendant is a banking corporation; that its name was formerly Commonwealth National Bank; denies each and every other allegation; and pleads at length and in detail affirmative defenses to the effect (1) that any loss suffered by appellant was due to his own negligence and that of his agents, and (2) that the acts and conduct of appellant were such as to estop him to assert ownership in the stock and to claim damages for the refusal of the bank to reissue same to him.

There was a jury-waived trial. There was no request for a directed verdict by either party at the close of the evidence. There were no declarations of law asked or given, and no findings of fact requested or made. The court in its judgment merely found the issues for the defendant and adjudged that plaintiff take nothing by his action. Plaintiff appealed.

In brief outline there is evidence that in the year 1922 and in the following year there was an "upset" condition in the affairs of the bank and its stock was greatly fluctuating and ranged in price during the periods in question from $95 to $1.50 per share; that the plaintiff was speculating extensively in this stock and at one time owned four or five hundred shares of it which he carried in the names of other parties and concealed the fact of his ownership except a certificate for five shares which was carried in his own name. His dealings were conducted through a broker who assisted plaintiff to conceal his operations and procured for plaintiff "street names" in which to hold plaintiff's stock. The specific certificates in question in this suit were purchased by the broker for plaintiff and carried for a while in the name of one of his clerks until assessments were made upon the stock which were secretly paid by the plaintiff. The party in whose name the certificates were carried then requested to be relieved of liability for assessments against him and the certificates were then sent in to the bank and reissued in the name of one Duerr who receipted for the certificates on the records of the bank and indorsed the certificates in blank, and they were thereafter held by the broker and delivered to plaintiff. This was early in 1923. Thereafter the name of the bank was changed and all of its stockholders, as shown by the records of the bank, were notified to bring in their certificates for cancellation and reissuance over the new name of the bank. Plaintiff received this notice, took in the certificates for five shares held in his name and obtained a reissuance thereon, but neglected and failed to present the certificates owned by him and appearing upon the records of the bank in the name of Duerr. Through a period of more than a year and a half the bank officials endeavored to locate the owner of the Duerr stock and to have the certificates thereof presented. They talked many times in person with the broker who had handled the transaction for plaintiff when the stock was purchased and repeatedly telephoned to him in efforts to locate Duerr and to obtain a production of the certificates standing in his name. Upon their urgent request and insistence the broker promised that he would get in touch with the owner of the stock and have it produced. He never at any time revealed to the bank the true ownership of the stock, but purposely concealed that fact under the pretense that it was not a broker's duty to "broadcast" his client's business. The broker on numerous occasions reported to plaintiff that the bank was seeking a...