Wolf v. Wuelling

• Decision Date: 08 May 1939
• Citation: 130 S.W.2d 671,233 Mo.App. 1144
• Parties: LAURA GAUME WOLF, EXTX., APPELLANT, v. GEORGE WUELLING ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

130 S.W.2d 671

233 Mo.App. 1144

LAURA GAUME WOLF, EXTX., APPELLANT, v. GEORGE WUELLING ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 8, 1939

233 Mo.App. 1144 at 1162.

Original Opinion of May 8, 1939, Reported at: 233 Mo.App. 1144. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

Respondents, defendants below, have filed a motion for rehearing, urging a consideration of a late opinion by the Supreme Court (People Bank of Butler v. Allen, 125 S.W.2d 829) wherein the well-accepted rule to the effect that one cannot enter into a contract with himself, or with himself and others, even though he acts in different capacities.

The point was raised by respondents in the hearing had at the April Call, 1929, of this court and was discussed by us in connection with the opinion in Robertson v. Bank of Vandalia, 66 S.W.2d 193.

The Butler v. Allen case, supra, is best distinguished from the opinion, l. c. 829 and 830 as follows, to-wit:

"The bank directors, in meeting assembled, in passing the resolution authorizing the bank's bond made an order that the president and the cashier 'assign, set apart and maintain as security to the sureties on the bond (all members of the board) bills receivable belonging to said bank in a sum not less than $ 40,000 nor more than double the amount of the penalty of said bond, for the purpose of securing said bondsmen against loss by reason of their obligation on said bond; said president and cashier are further authorized and empowered, from time to time, to take up any of the bills receivable so put up as security and to substitute other bills receivable in place of any so taken up; all security so put up to be returned to the bank when said bondsmen are released from liability on said bond. Alva Deerwater is named as trustee to receive and hold said collateral security for the benefit of the sureties on said bond.'

"In the order of the county court designating the bank as depository it was further provided that the designated depository furnish a bond in proper form for the amount above stated, 'to be signed by not less than five owners of unencumbered real estate of value equal in amount to the bond, or more.'

"Only two of all the directors could meet this requirement when the bond was presented. The county court approved and accepted the same.

"Said notes were all taken out of the possession of the bank before the assets of the bank were turned over to the Commissioner of Finance and copies of them substituted in the bank's files. All the original notes so taken out were held and are now retained by the appellant.

"In all published statements of the condition of the affairs of said bank prior to the Commissioner of Finance's taking over of the bank, said assets were includes as assets of the bank."

It is fundamental that for a general rule of law to have application to any given case, the facts and circumstances of such case must...