Wilson v. Farmers' First Nat. Bank

• Decision Date: 19 January 1914
• Citation: 162 S.W. 1047,176 Mo. App. 73
• Parties: WILSON v. FARMERS' FIRST NAT. BANK.
• Court: Missouri Court of Appeals

162 S.W. 1047

176 Mo. App. 73

WILSON v. FARMERS' FIRST NAT. BANK.

Kansas City Court of Appeals. Missouri.

January 19, 1914.

1. BANKS AND BANKING (§ 119)—DEPOSIT— EFFECT.

A general deposit in a bank creates the relation of debtor and creditor between the bank and the depositor, and the bank may apply such deposit in payment of an indebtedness due from the depositor even without his consent.

2. BANKS AND BANKING (§ 134)—DEPOSITS— MONEY.

As money has no earmarks, but passes from hand to hand without inquiry as to any one's right thereto, a bank's right to apply a deposit of money to an indebtedness due from the depositor cannot be defeated because of secret equities in favor of a third person.

3. BANKS AND BANKING (§ 134)—DEPOSIT— RIGHT OF BANK TO APPLY.

Plaintiff purchased hogs, and engaged his brother, who was indebted to the defendant bank, to assist him; it being agreed that the hogs should be consigned to the brother's old agents. Through mistake, the hogs were consigned in the name of the brother, and the agents deposited the proceeds from the sale to the brother's credit with the defendant bank. Held that, as the deposit was made under a mistake, and there was no intention for the brother ever to obtain the proceeds, the bank was not entitled to retain them as against plaintiff, and apply them to the brother's debt.

Appeal from Circuit Court, Callaway County; D. H. Harris, Judge.

Action by W. H. Wilson against the Farmers' First National Bank. From a judgment for plaintiff, defendant appeals. Affirmed.

J. R. Baker, of Fulton, for appellant. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

JOHNSON, J.

The petition alleges that "on or about the 15th of October, 1912, defendant received from the Shippers' Live Stock Commission Company of National Stockyards, Ill., the sum of $1,245.47, belonging to plaintiff; that on October 21, 1912, plaintiff demanded payment to him of said sum on or before October 25, 1912; that defendant has failed and refused, and still fails and refuses, to pay over said sum or any part thereof to plaintiff." The defense is that defendant bank received the money from the commission company as a deposit to the credit of G. C. Wilson, a brother of plaintiff, and applied it in payment of an indebtedness of the depositor. A trial in the circuit court resulted in a verdict and judgment for plaintiff. The principal contention of counsel for defendant is that their demurrer to the evidence should have been sustained.

The pertinent facts of the case are as follows: Wood Wilson (plaintiff) and his brother Grover (G. C. Wilson) formerly were partners in the business of buying and shipping hogs, but had dissolved partnership, and plaintiff had engaged in the real estate business. Grover continued as a hog buyer and shipper until he became insolvent, and lost credit with defendant, where he had been transacting his banking business. At the time of the events in controversy he owed defendant more than $1,000, which he was unable to pay. Before his failure he had made numerous consignments of hogs to his agent at the stockyards at East St. Louis under standing instructions to pay the proceeds to defendant for his account. After defendant refused him banking accommodations, he failed to revoke these instructions, and his agent did not know that he had been forced to quit buying and shipping hogs on his own account. His situation was as just described when plaintiff employed him to assist in buying and shipping a car load of hogs to the stockyards at East St. Louis. The evidence of plaintiff tends to show that plaintiff bought and paid for the hogs, and that Grover had no interest in them, except that he was to receive compensation for his services from the profits plaintiff might realize from the shipment. The agreement between the brothers provided for the hogs to be consigned to Grover's sometime agent, but in the name and for the account of plaintiff. Part of the hogs purchased pursuant to this agreement were in charge of Grover at Cedar City, in Callaway county, and the remainder were at New Bloomfield in the possession of...