Woods v. Cainsville Bank

• Decision Date: 26 November 1928
• Docket Number: No. 16392.,16392.
• Citation: Woods v. Cainsville Bank, 11 S.W.2d 56 (Mo. App. 1928)
• Parties: BLANCHE WOODS, RESPONDENT, v. CAINSVILLE BANK, S.L. CANTLEY, COMMISSIONER, ET AL., APPELLANTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

11 S.W.2d 56

BLANCHE WOODS, RESPONDENT, v. CAINSVILLE BANK, S.L. CANTLEY, COMMISSIONER, ET AL., APPELLANTS.^*

No. 16392.

Kansas City Court of Appeals. Missouri.

November 26, 1928.

Appeal from the Circuit Court of Harrison County. — Hon. L.B. Woods, Judge.

AFFIRMED.

J. Hubert Fuller and L.M. Hyde for respondent.

Frisby & Frisby for appellants.

ARNOLD, J.

This is an action seeking the classification and payment of a claim against the defendant Cainsville Bank of Cainsville, Harrison county, Missouri, consisting of a certificate of deposit issued by the cashier of said bank on December 21, 1925, due in twelve months, for the sum of $591.95.

The facts of record are that on September 1, 1926, the Cainsville Bank, a corporation which had been operating as a bank at Cainsville in Harrison county, Missouri, for more than forty years, suspended payment by order of its board of directors, and was placed in charge of the commissioner of finance of the State of Missouri. One J.E. Harper was qualified as deputy commissioner and in his hands was placed the liquidation of the bank's affairs. On December 21, 1925, plaintiff purchased of the bank a time certificate for $591.95, due in twelve months, to draw four per cent interest. After taking charge of the bank's affairs said Harper, on September 30, 1926, inserted in the Cainsville News, a weekly paper published at Cainsville, a notice to creditors to the effect that all persons having claims against the said defendant bank must present proof of same on or before January 20, 1927. The first insertion of said notice was in the issue of September 30, 1926, and appeared each week thereafter during the months of October and November and during the month of December with the exception of the 20th day thereof — no paper being published that week — the last issue for that month being on December 23d and in which the notice appeared. The said notice was again published on January 6, 1927, and so continued throughout said month. In addition to said publication deputy commissioner Harper, on October 2, 1926, mailed to plaintiff a copy of the notice to creditors published in the Cainsville News, as above stated, as follows:

"All persons having claims against the Cainsville Bank, Cainsville, Missouri, are hereby notified to present the same to the undersigned, and make proper proof thereof, within four months from the above date, at the banking room of said bank in Cainsville, Missouri, and they are further notified that the last date for presenting said proof will be January 30, 1927."

There was also enclosed to plaintiff the following further notice:

"State of Missouri, Department of Finance
                          Jefferson City, Missouri
                                      "Date Sept. 28, 1926
                

Blanche Woods, Princeton, Mo.: According to the books of the Cainsville Bank, Cainsville, Mo., you hold Certificates of Deposits of the following numbers and amounts:

         4057              $591.95
                             Total
                

"If this agrees with your records, please sign and return. Your promptness in this matter will be greatly appreciated. "J.E. HARPER, Deputy State Commissioner in charge Cainsville Bank, Cainsville, Missouri."

To this notice was attached a blank, perforated for detachment, on which was printed:

                             Date ________________, 1926
                

"The sum of $591.95 is the correct total of all certificates of deposit of the Cainsville Bank, Cainsville, Mo., held by me and I certify that I have no other claims against said bank in the form of certificate of deposit.

                                               "________________________."
                

The evidence shows plaintiff filled in the blank date and attached her signature and on October 5, 1926, through her husband, filed said claim with deputy commissioner Harper at the banking rooms of the Cainsville Bank. It is further in evidence that plaintiff's said husband, Oscar Woods, on delivery of said form to Harper, asked him "if that is all there is to do," and that Harper compared the form with the books of the bank and said: "It is all right and there is nothing more to do," or words to that effect. But as to this conversation there is some controversy. Commissioner Harper testified that to the best of his recollection such conversation did not occur; that he had no recollection of it. In his version of the matter, Harper, in part, is corroborated by two young lady employees of the deputy commissioner who were in the bank at the time.

Approval of plaintiff's claim was refused by the deputy commissioner and this suit was brought on April 22, 1927, to establish said claim. It further appears in evidence that at the time the suit was instituted no dividend had been declared or paid to creditors of the bank; that at the time of the trial, October 26, 1927, approximately $100,000 had been collected from assets of the bank; that on May 19, 1927, a twenty per cent dividend had been declared in favor of the common claims and about $50,000 had been paid thereon. The expenses of the liquidation up to that time had been about $10,000. There seems to be no dispute as to the material facts in the record and the controversy is waged over the correct application of the law to the facts.

The petition is formal and sets out the facts as above detailed. Judgment is asked for the face of the certificate of deposit and an order of court to classify the claim and that the court require the commissioner to pay the claim out of funds of the bank then in his hands. The answer admits the allegations of the petition as to the prior corporate status of the bank, its operation, and that it was closed on the date alleged; that J.E. Harper as special deputy commissioner was then in charge of its liquidation; that plaintiff deposited the sum alleged, received a certificate of deposit therefor, and that no part thereof had been paid. These admissions were followed by a general denial of all other allegations in the petition. As affirmative defense the answer avers that immediately after taking possession of the affairs of the bank, the deputy commissioner gave notice to all creditors thereof, including plaintiff, to present their claims within four months, as provided in section 11716, Revised Statutes 1919; that the times specified in said notices had expired and that plaintiff failed to make any proof whatever of her claim within said time.

To which answer plaintiff filed reply alleging that plaintiff did "make out" her claim on the blank furnished by said Harper, deputy commissioner, after being notified by him by letter that the sum of $591.95 was due her from the defunct bank; that she duly signed and filed said claim with the commissioner for the amount alleged in the petition; that the said commissioner of finance had not completed the liquidation of the said bank, and that he still had in his possession uncollected assets, and also a large sum of money undistributed from the assets of said bank; that no final dividend had been declared and no final distribution to creditors had been made; and that the funds of said bank were still in the hands of the commissioner of finance for distribution by order of the court; that defendants admit the sum prayed for is justly due plaintiff, that it has not been paid and that in equity and good conscience, plaintiff "should be allowed to participate in the same dividends they have or do distribute to other depositors." The prayer seeks judgment as asked in the petition and asks the court to order defendants to pay her the same dividends as paid to all other depositors, and for such further relief as to the court may seem just and proper.

A jury was waived and the cause submitted to the court on an agreed statement of facts which, in substance, is as stated above. The court, by its decree, found for plaintiff in the sum of $615.63 at the same time classifying the claim as common and ordering it paid as such. Motions for a new trial and in arrest were ineffectual and defendants have appealed.

At the close of all the evidence defendants offered four declarations of law which the court refused. These declarations were as follows: (1) "That proper proof of claim within the meaning of section 11716. Revised Statutes 1919, consists of a declaration in writing as to the amount of the claim, together with a statement showing that defendant bank is not entitled to any set-off against said claim and said statement being signed and sworn to by claimant or her authorized agent." (2) "That the notice mailed to plaintiff in this case, notifying her to present her claim and make proper proof thereof, together with...