Winter v. Commercial Bank

• Decision Date: 07 March 1922
• Docket Number: No. 16949.,16949.
• Citation: 238 S.W. 833
• Parties: WINTER v. COMMERCIAL BANK OF NEW MADRID.
• Court: Missouri Court of Appeals

238 S.W. 833

WINTER v. COMMERCIAL BANK OF NEW MADRID.

No. 16949.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Rehearing Denied March 23, 1922.

Error to St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by John E. Winter against the Commercial Bank of New Madrid, Mo., a corporation. Judgment for plaintiff, and defendant brings error. Reversed.

Jones, Hacker, Sullivan & Angert, of St. Louis, and Gallivan & Finch, of New Madrid, for plaintiff in error.

Hall & Dame, of St. Louis, for defendant in error.

BECKER, J.

This writ of error brings up for our review the record in the case wherein John E. Winter, as plaintiff, recovered judgment on November 5, 1919, in the circuit court of the city of St. Louis, Mo., against the Commercial Bank, a corporation, the plaintiff in error, which company was joined as defendant with the Himmelberger-Harrison Lumber Company, a corporation, and Theodore J. Wolfley and James J. Maloney, copartners, doing business as Wolfley & Maloney, and Gottlieb P. Gerken and Ber" tha Gerken, his wife. The judgment recovered, which was for $781.47, was against the defendant Commercial Bank alone; the plaintiff having dismissed his action as to each of the other defendants on the day of trial.

We deem It necessary to set forth plaintiff's petition in its entirety. It is as follows:

"Plaintiff says that defendant Himmelberger-Harrison Lumber Company is, and was at all times herein referred to, a corporation, engaged in the business of dealing in land and lumber in the state of Missouri, and having an office for conducting its said business in the city of Cape Girardeau, Cape Girardeau county, Mo, "Plaintiff says that the defendant Commercial Bank is, and was at all times herein referred to, a corporation, engaged in the banking business, and having its bank and offices in the city of New Madrid, in New Madrid county, Mo.

"Plaintiff says that the defendants Theodore J. Wolfley and James J. Maloney were at the times herein referred to a copartnership, conducting a farm loan business as and in the name of Wolfley & Maloney, and having offices for conducting said business in the Central National Bank Building, in the city of St. Louis, Mo. "Plaintiff for his cause of action against the defendants states that on or about August 21 1918, defendant Himmelberger-Harrison Lumber Company agreed in writing with defendants Wolfley & Maloney that in consideration of said Wolfley & Maloney procuring a loan for defendant Gottlieb P. Gerken and Bertha Gerken, his wife, thereby causing and enabling said Gerkens to pay in advance of maturity to defendant Himmelberger-Harrison Lumber Company a debt owing by said Gerkens to defendant Himmelberger-Harrison Lumber Company, said loan to be secured by deed of trust on land of said Gerkens situated in New Madrid county, Mo., which land had theretofore been sold by defendant Himmelberger-Harrison Lumber Company to said Gerkens, and the said debt being on account of the purchase price of said sale, and said debt amounting to over $18,000 and maturing in installments involving a long term and series of payments, the defendant Himmelberger-Harrison Lumber Company would pay to the order of Wolfley & Maloney $736.47, the same being computed as 4 per cent. of the amount of said debt and interest owing by said Gerkens to defendant Himmelberger-Harrison Lumber Company.

"Plaintiff further avers that defendant Wolfley & Maloney agreed in writing with plaintiff, on or about August 13, 1918, that, in consideration of plaintiff procuring a loan of $5,000 for said Gerkens, to be secured by a second deed of trust on the said land of said Gerkens, and in this manner assisting said Wolfley & Maloney to procure for said Gerkens loan sufficient in amount to enable said Wolfley & Maloney to carry out their said agreement with said Himmelberger-Harrison Lumber Company, and to enable said Gerkens to pay their said debt to Himmelberger-Harrison Lumber Company, the said Wolfley & Maloney would cause to be paid to plaintiff the said sum of 4 per cent. of said debt and interest, to wit, $736.47, to be paid by said Himmelberger-Harrison Lumber Company to the order of said Wolfley & Maloney as aforesaid.

"Plaintiff further avers that plaintiff carried out his said agreement with defendants Wolfley & Maloney, and that said defendants Wolfley & Maloney carried out their part of their said contract with defendant Himmelberger-Harrison Lumber Company, and in consequence thereof the said debt of Gerkens was paid and discharged, and that thereupon defendant Himmelberger-Harrison Lumber Company became obligated to pay to the order of Wolfley & Maloney $736.47, as aforesaid, and that said defendants Wolfley & Maloney did order and direct defendant Himmelberger-Harrison Lumber Company to pay the said sum to John E. Winter, the plaintiff, for whose benefit the said contract between defendants Wolfley & Maloney and Himmelberger-Harrison Lumber Company was made, of all of which the defendant, and each of them, had knowledge and notice prior to the payment of the debt of said Gerkens, as aforesaid, and to all of which the defendants and each of them consented and agreed.

"Plaintiff further avers that defendant Commercial Bank undertook and agreed with defendants Wolfley & Maloney and Himmelberger-Harrison Lumber Company to receive the money of the said loans to said Gerkens and to pay $736.47 thereof to Himmelberger-Harrison Lumber Company, or to the order of defendants Wolfley & Maloney, for the account of plaintiff, for whose benefit the said undertaking and agreement with said defendant bank was entered into, but plaintiff avers that defendant Commercial Bank, in violation of its said undertaking and agreement and in violation of the instructions, orders, and directions given by said Wolfley & Maloney and Himmelberger-Harrison Lumber Company a...