York v. Farmers Bank of Garden City

• Decision Date: 07 March 1904
• Citation: 79 S.W. 968,105 Mo.App. 127
• Parties: T. M. YORK, Respondent, v. THE FARMERS BANK OF GARDEN CITY, Appellant
• Court: Kansas Court of Appeals

79 S.W. 968

105 Mo.App. 127

T. M. YORK, Respondent, v. THE FARMERS BANK OF GARDEN CITY, Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1904

Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.

Judgment affirmed.

A. L Graves and A. A. Whitsitt for appellant.

(1) The law is well settled in this State that pleadings shall be strictly construed against the pleader. Snyder v Free, 114 Mo. 367; Overton v. Overton, 131 Mo 566; Young v. Schofield, 132 Mo. 661; Bales v. Bennington, 141 Mo. 581; Sidway v. Railway, 163 Mo. 372. (2) It is equally true that the plaintiff is bound by the allegations of his petition. Bruce v. Sims, 34 Mo. 251; Speck v. Riggins, 40 Mo. 406; Bank v. Armstrong, 62 Mo. 65; Chapman v. Callahan, 66 Mo. 312; Dorman v. Publishing Co., 70 Mo. 175; Kuhn v. Weil, 73 Mo. 215; Weil v. Poster, 77 Mo. 287; Wilson v. Albert, 89 Mo. 546; Bensieck v. Cook, 110 Mo. 182. (3) An action can not be brought on one cause of action and recovery had on another. Clements v. Yeates, 69 Mo. 623, and cases cited; Sanders v. Karlwood, 79 Mo. 278; Finlay v. Beyson, 84 Mo. 664; Jones v. Loomis, 19 Mo.App. 234; Johnson v. Bank, 116 Mo. 558; Rippee v. Railway, 71 Mo.App. 557; Crother v. Acock, 43 Mo.App. 318; Trimble v. Stewart, etc., 35 Mo.App. 541; Fisher v. Realty Co., 159 Mo. 562; Raming v. Railway, 157 Mo. 477; Cole v. Armour, 154 Mo. 333; Huston v. Taylor, 140 Mo. 252. (4) If, however, the intention was to establish a parol trust as to personalty by oral testimony, then the rule is that the evidence must be clear in regard to the subject-matter and purposes of the trust, and the person or persons who are to take the beneficial interest. The evidence in this case falls short of measuring up to the above standard. Huetteman v. Viesselmann, 48 Mo.App. 582; Cramer v. McCaughey, 11 Mo.App. 426; Childs v. Cemetery, 4 Mo.App. 74; Deal v. Bank, 79 Mo.App. 262. (5) Instructions Nos. 1, 2, 3 and 8 given for the plaintiff, being based on a cause of action for conversion of the stock, even if the petition alleged conversion of the stock, and the evidence sustained the allegations of the petition, are erroneous, in that they peremptorily told the jury if they found for the plaintiff they would allow him interest on the amount so found from date of demand. The question of allowing interest was one of the discretion of the jury, not the court, and for this error, the cause should be reversed. R. S. 1899, sec. 2869; State ex rel. Hope, 121 Mo. 36; Carson v. Smith, 133 Mo. 606; Hawkins v. Brick Co., 63 Mo.App. 64; Vermillian v. LeClare, 89 Mo.App. 55; Wheeler v. McDonald, 77 Mo.App. 213; Eagle Co. v. Railway, 71 Mo.App. 626. (6) The instructions in this case, defining the measure of damages to be recovered, show that recovery was sought and had on cause of action for conversion of the stock. Carter v. Feland, 17 Mo. 283; Hendricks v. Evans, 46 Mo.App. 313; Baker v. Railway, 52 Mo.App. 602; Mfg. Co. v. Huff, 62 Mo.App. 124; Spencer v. Vance, 57 Mo.App. 427; Vaughn v. Fisher, 32 Mo.App. 29.

C. W. Hight and T. N. Haynes for plaintiff.

(1) The evidence shows that defendant received the money which justly belonged to plaintiff and refused to pay it over after demand; the petition so states, and whether the action be designated one for money had and received, or conversion, it is sufficient. Johnson-Brinkman Co. v. Bank, 116 Mo. 558; Antonelli v. Basile, 93 Mo.App. 138; Richardson v. Drug Co., 92 Mo.App. 515; Railway v. McLiney, 62 Mo.App. 166; Deal v. Bank, 79 Mo.App. 262; Jacoby v. O'Hearne, 32 Mo.App. 566; Robbins v. Ins. Co., 12 Mo. 380; Maxwell on Code Pleading, p. 247; 4 Wait's Actions and Defenses, 469; R. S. 1899, sec. 539. (2) The petition states a good cause of action for money had and received and under the evidence this is the proper remedy. Johnson-Brinkman Co. v. Bank, 116 Mo. 558; Richardson v. Drug Co., 92 Mo.App. 515; Antonelli v. Basile, 93 Mo.App. 138; Deal v. Bank, 79 Mo.App. 262; Maxwell on Code Pleading, p. 247; 4 Wait's Actions and Defenses, 469. (3) The terms of the sale to plaintiff and his assignors being cash on delivery, and no cash having been paid, no title passed to Hord, and the latter could convey no title either in the stock or the proceeds, to anyone else. Johnson-Brinkman v. Bank, 116 Mo. 558; Railroad v. McLiney, 32 Mo.App. 166; Bank v. Railroad, 46 N.W. 342; Benjamin on Sales, sec. 731; 2 Parsons on Contracts (7 Ed.), 624; Woodburn v. Woodburn, 115 Ill. 427; Hodgson v. Barrett, 33 Ohio St. 63. (4) There was no agreement that the checks should be received as absolute payment, and there is no presumption that they were so received. Johnson-Brinkman Co. v. Bank, 116 Mo. 558; see, also, cases cited under proposition 3. Defendant failed to apply the money placed in its hands for the use of the holders of these checks as it, by an implied contract and as we claim by specific contract, agreed to do, hence it is liable for interest on amount due from date of demand and it was not error to so instruct the jury. Padley v. Catterlin, 64 Mo.App. 648; Lachner Bros. v. Express Co., 72 Mo.App. 21; Goodman v. Railway, 71 Mo.App. 464. (5) Defendant had the use of plaintiff's money and deprived plaintiff of use of it, hence it is proper to allow interest. Padley v. Catterlin, 64 Mo.App. 648. The statute 1899, section 2869, cited by defendant applies only to actions ex delicto, and has no application to this class of cases. Padley v. Catterlin, 64 Mo.App. 648; Goodman v. Railway, 71 Mo.App. 464.

OPINION

SMITH, P. J.

The petition is in three counts, in the first of which it is stated that the plaintiff was the owner and entitled to the possession of eight mules which were shipped by A. F. Hord from Harrisonville and consigned to McFarlane-Evans Co., East St. Louis, and by that company sold and the proceeds arising from such sale, amounting to $ 950, were received by defendant, an incorporated bank, located at Garden City, in Cass county; that the defendant knew at the time of the receipt of such proceeds that the plaintiff was entitled thereto and that the plaintiff had demanded of defendant the payment of such proceeds, which the latter had refused. The facts stated in the second and third, except as to parties, animals and amount for which they were sold, are very much the same as those stated in the first. It was further stated in said second and third, however, that the plaintiff had acquired by assignment the causes of action therein stated, and had a right of action therein. The answer was a general denial.

The evidence tended to establish about these facts, viz.: That said Hord, a trader in live stock, resided in the vicinity of where said defendant bank was located and though without any capital of his own was by the assistance of defendant enabled to carry on a rather extensive trade in live stock. During the twelve months preceding the transaction which gave rise to this action his business with defendant had amounted to something like seventy thousand dollars. Under an arrangement with defendant he carried on his trading operations in about this way: He would purchase here and there horses, mules or other stock giving his check on defendant therefor and making on each check the kind of stock for which it was given. These checks would be paid by defendant and when one or more carloads of such stock was purchased and ready for shipment he would draw a sight draft on the commission merchant to whom the stock was consigned and in this way cover the checks which he had given the persons from whom he had made his purchases. Further evidence was adduced which tended to show that along early in January, 1903, it was discovered by defendant that Hord had not been successful in his trading and that the aggregate amount of his checks exceeded his drafts and that he was behind with defendant to a considerable amount. The defendant became restless and uneasy and began to look about to see how it could best even up its account with Hord who, in the meantime, carried on his trading operations without serious interference, giving his checks and drafts as he had been accustomed to do.

On January 9, 1903, the defendant's cashier, Stevens, called Hord up by telephone at Archie and inquired how he had come out on his shipment made on the sixth, to which Hord answered that he had made money. Stevens then inquired when he was going to ship again, to which Hord answered that he had bought one horse that evening and was going to Butler, Adrian and Harrisonville to buy the rest. Hord in this telephone talk told Stevens that he would mail him a draft that day and when the shipment was complete he would make a draft for the full amount of the cost of the horses. Stevens responded, "all right." Hord then said: "You O. K. the checks I am giving and send me a check book. . . . I am going to buy horses and if any of the banks call you up you can tell them it's all right for these horses;" and to which Stevens replied: "Yes, sir." Stevens sent Hord the check book to Archie and the latter sent him a draft for $ 1,800 on McFarlane-Evans Co., with instructions, "to hold it until the two carloads of horses were made up and then he would made a draft for the full amount, when the former draft could be returned to him." On January 12, Stevens wrote Hord that, "your account is barely even since the $ 1,800 draft is in. Don't buy any more horses at this time than you can ship out clean."

On the same day, Hord answered the above letter saying that, "I will buy no more horses than I can ship out but please take care of these checks. I will wire draft Saturday in place of the one you hold. Will ship hogs tomorrow and will wire draft on them. . . . Please don't turn down my checks until I get this load off," etc.

On the fifteenth, Hord...