Whitsett v. Peoples National Bank
| Decision Date | 31 May 1909 |
| Parties | CHARLES T. WHITSETT, Appellant, v. PEOPLES NATIONAL BANK, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Johnson Circuit Court.--Hon. Nick M. Bradley, Judge.
AFFIRMED.
Judgment affirmed.
Morrow & Kelley for appellant.
(1) No transfer of fund was made to be waived or ratified. (2) No evidence of a transfer of the fund from Whitsett to Ferguson. (3) To constitute waiver there must be both knowledge and acquiescence, something must be done or the party must forbear the doing of something. Williams v Railroad, 153 Mo. 519; Haysler v. Owen, 61 Mo 274; Johnson Co. v. Lowe, 72 Mo. 637. The knowledge must be actual. Thresher Co. v. Pierce, 74 Mo.App 684; Webb v. Allington, 27 Mo.App. 559. (4) Acquiescence no waiver unless estoppel. Fairbanks, Morse & Co. v. Basket, 98 Mo.App. 65; Blodgett v. Perry, 97 Mo. 263; Royal v. The Aultman Taylor Co., 116 Ind. 242, 2 L.R.A. 562; Coal Co. v. Murphy, 101 Ind. 115. (5) Estoppel essence of waiver. Blodgett v. Perry, 97 Mo. 263; Williams v. Neely, 134 F. 1, 69 L.R.A. 240. (6) No consideration for waiver. Fairbanks, Morse & Co. v. Basket, 98 Mo.App. 64. (7) Subsequent knowledge will not constitute ratification. Bank of Ravenna v. Dobbins, 96 Mo.App. 696. (8) Both ratification and waiver must be pleaded. McClanahan v. Payne, 86 Mo.App. 284; Webb v. Allington, 27 Mo.App. 559; State ex rel. v. Peterson, 142 Mo. 526.
O. L. Houts for respondent.
(1) If for any reason assigned in the motion for a new trial the verdict should have been set aside this court will affirm the ruling of the trial court: Ittner v. Hughes, 133 Mo. 679; Hewitt v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; State ex rel. v. Adams, 84 Mo. 310. (2) Defendant gave plaintiff credit for $ 411.42 and thereby became plaintiff's debtor to that amount. On the same day defendant for value became the owner of plaintiff's check to Ferguson, duly endorsed by him, for the same amount, and gave Ferguson credit therefor and plaintiff by reason thereof became defendant's debtor to the amount of the check, $ 411.42, and defendant and plaintiff were mutually indebted to each other in the same amount. At the same time and as a part of the same transaction defendant charged the check to plaintiff's account, thereby balancing the account and leaving no indebtedness from defendant to plaintiff. On these facts plaintiff could not recover and the trial court committed error in giving plaintiff's peremptory instruction. Defendant's peremptory instruction should have been given and judgment entered in its favor. O'Grady v. Bank, 106 Mo.App. 369; Bank of Quincy v. Tutt, 5 Mo.App. 342; Munch v. Bank, 11 Mo.App. 144. (3) Plaintiff, with knowledge of the essential facts of this transaction, that the proceeds of the sale of Ferguson's cattle had been sent to defendant's bank and had been by the Bank placed to Ferguson's credit and that Ferguson had received it, acquiesced therein for a period of two months and a half. This constituted waiver on his part and precludes him from recovering in this action, and this defense like defendant's second proposition in this brief is complete in itself regardless of every other fact and circumstance in the case and is not based on the check. Knowledge and acquiescence constitute waiver. The court therefore, to say the least, committed error in failing to submit the question of waiver to the jury. Fulkerson v. Lynn, 64 Mo.App. 652; Workman v. Campbell, 57 Mo. 53; 2 Cyc., 172; King v. Hunt, 13 Mo. 97; Bank v. Gray, 63 Mo. 33; 2 Cyc., 187; Henderson v. Koenig, 192 Mo. 690.
Plaintiff sued defendant bank to recover a deposit. Special defenses to which we shall refer were interposed in the answer. In obedience to a peremptory instruction from the court, the jury returned a verdict for plaintiff for the amount claimed in the petition, but on the hearing of the motion for a new trial, filed by defendant, the court set aside the verdict and granted a new trial. Plaintiff appealed.
Plaintiff, a dealer in live stock at Centerview, a town about six miles from Warrensburg, shipped some cattle in his own name to Kansas City and sold them on the market on January 17, 1906. A commission firm acted as his agent and, pursuant to his instructions, deposited the net proceeds of the sale ($ 411.42) in a Kansas City bank to the credit of defendant, a bank at Warrensburg, for the account of plaintiff. The Kansas City bank notified defendant by letter as follows: "We credit your account $ 411.42 deposited with us by direction of C. T. Whitsett." Defendant received this letter January 18th and immediately entered the sum on its books as a deposit of plaintiff. Before the cattle were shipped in the name of plaintiff, Charles Ferguson, a live stock dealer at Warrensburg, had told the cashier of defendant bank that he was about to ship some cattle to the market at Kansas City and that the proceeds would come to defendant for deposit to his account. Ferguson called at the bank on the day it received the notice of the deposit in the Kansas City bank, and asked the cashier if the proceeds of the sale of his cattle had been received. The cashier replied that the proceeds had been deposited at Kansas City in the name of plaintiff and entered on defendant's books to plaintiff's credit. Ferguson declared a mistake had been made, that the cattle shipped and sold in the name of plaintiff belonged to him (Ferguson) and that the proceeds should have been entered to his credit. The cashier then told Ferguson to bring plaintiff in and "we would fix that up in a minute." Ferguson left and returned in a short time with a check to his order, signed by plaintiff, for the exact amount of the deposit. The cashier discovered the check was drawn on the Bank of Centerview instead of on defendant bank and called Ferguson's attention to that fact. Ferguson said It appears plaintiff was not a regular customer of defendant but transacted his banking business with the Bank of Centerview. Satisfied a mistake had been made by plaintiff and that the check was intended to be on defendant bank, the cashier told Ferguson to endorse it and after this was done, immediately altered the check to make it read on defendant bank and then charged the amount on the books to plaintiff and gave Ferguson proper credit. No certificate of deposit or pass book was issued by defendant to plaintiff nor did plaintiff issue any checks against the deposit. About two months after the transfer to Ferguson the Bank of Centerview failed. Plaintiff had continued to do business with that bank and on the day of the failure gave checks to farmers in payment of live stock purchased from them. Learning that the bank had closed its doors, the holders of these checks went to plaintiff for their money. He told them his money was in the bank that failed and that he had no other funds. One of the farmers insisted on payment and plaintiff told him "I cannot give you a check here (meaning on a bank in Warrensburg) but Ferguson will give you a check on the Peoples National Bank." The farmer agreed to take Ferguson's check if the bank would cash it. They went to Ferguson and he gave his check on defendant bank for the amount of the debt and the farmer took the check to defendant bank and received the money. A few days later, plaintiff called at the bank and asked the cashier to give him the amount of his deposit. The cashier told him he had no funds to his credit as he had transferred the amount of his deposit to Ferguson. Plaintiff asked the cashier to show him the check by which the transfer had been made. The cashier at first refused but afterward, under considerable pressure, produced the check. Plaintiff denounced it as a forgery and then presented a check for the amount of the deposit. The cashier refused to honor the check and this suit followed.
The answer begins with the admission that on the day of March 1906, plaintiff drew his check on defendant bank for $ 411.42, presented it for payment during banking hours and that defendant refused to pay it. Then follow a general traverse and four special defenses. In the first of these defendant admits receiving the deposit for plaintiff's account, but alleges that the money belonged to Ferguson and that "defendant transferred said credit and gave credit for the said sum to the said Charles Ferguson, at his instance and request, and afterwards paid out the same to him upon his order, and that plaintiff directed that said credits be entered to said Ferguson, and that payment of the said money be made to him, and agreed and assented thereto." The second special defense in purport and effect is a plea of waiver and estoppel. In the third defense, it is alleged that plaintiff and Ferguson were partners, that the deposit was partnership property and that Ferguson "as one of said firm, had a right to receive the said sum of money, and that payment thereof by defendant to him made by it was a full and complete discharge of any and all obligations of defendant to plaintiff." The fourth special defense thus is stated: "Defendant, further answering, states the facts to be that on the 18th day of January 1906, defendant received notice from the Union National Bank of Kansas City, Mo., that it had placed to the credit of defendant, by the direction of plaintiff, $ 411.42; that on the same day defendant placed to the credit of plaintiff the said sum of $ 411.42; that said sum of money belonged to and was the property of one Charles Ferguson; that said Ferguson so notified defend...
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