Young v. Bank of Princeton
| Citation | 71 S.W. 713,97 Mo.App. 576 |
| Parties | FRANK P. YOUNG, Respondent, v. BANK OF PRINCETON, Appellant |
| Decision Date | 05 January 1903 |
| Court | Kansas Court of Appeals |
Appeal from Mercer Circuit Court.--Hon. Paris C. Stepp, Judge.
REVERSED.
Judgment reversed.
Alley & Alley and Harber & Knight for appellant.
(1) The check of William A. Lynam to G. W. Squires, or bearer, with authority to fill in full amount said Lynam had in the bank from time such amount was filled in and bank had knowledge thereof, operated as an assignment to the legal holders of said check, as against Lynam or any person standing in his place, or in fact any and every person, of such funds so in said bank; and hence said Stiles and Miller being the legal holders, and for a most valuable consideration, of this check, it operated from October 2, 1900, as an assignment to them of all the moneys said Lynam had in appellant bank; and it makes not the slightest difference whether the same was credited to the account of Squires and accepted by him, or he had any knowledge thereof, before the garnishment of October 8, 1900. Albers v. Bank, 9 Mo.App. 59; Burns v Kahn, 47 Mo.App. 215; Shoe Co. v. Crosswhite, 124 Mo. 34; Loan Ass'n v. Bank, 126 Mo. 82; Bank v. Latimer, 64 Mo.App. 321; Grocer Co. v Bank, 71 Mo.App. 132, and cases cited; Morrison v. McCartney, 30 Mo. 183; Chouteau v. Rouse, 56 Mo. 67; Lewis v. Bank, 13 Mo.App. 202; Lamp Co. v. Mfg. Co., 64 Mo.App. 115. (2) At the time of the service of garnishment Lynam had assigned for value the amount due him from the bank, and the bank had notice thereof prior to judgment against it, certainly if prior to its answering, the bank could not be held as the debtor of Lynam. See cases cited under paragraph 1; 2 Shinn on Attachment and Garnishment, 538-9, pp. 918, 919; Hendrickson v. Bank, 81 Mo.App. 332; Smith v. Sterritt, 24 Mo. 260; Knapp v. Stanley, 45 Mo.App. 264; Water Co. v. Harkness, 49 Mo.App. 357; Williams v. Scullen, 59 Mo.App. 30; Atwood v. Hale, 17 Mo.App. 81; Bank v. Cushman, 66 Mo. 103; Halker v. Kennessly, 143 Mo. 80. (3) The description of the property contained in said mortgages was wholly insufficient to the maintenance of any action in respect thereto. Jones on Chat. Mort., sec. 55; Stonebraker v. Ford, 81 Mo. 532; Trimble v. Keet, 65 Mo.App. 174; Boeger v. Langerberg, 42 Mo.App. 7; Steinecke v. Uetz, 19 Mo.App. 145; Chandler v. West, 37 Mo.App. 631; Jennings v. Sparkman, 39 Mo.App. 663; Hughes v. Menefee, 29 Mo.App. 192; Estes v. Springer, 47 Mo.App. 99-104. (4) Even if plaintiff had been the owner of the notes, and mortgages securing them, and there had been a sufficient description of the property, he could only follow the property itself; he could not follow the proceeds of the sale of such property. 2 Cobbey on Chattel Mortgages, sec. 636, p. 637; Ware v. Georgetown Cong., 125 Mass. 584; Waters v. Bank, 65 Iowa 234; Burnett v. Gustafson, 54 Iowa 132.
Ira B. Hyde & Son and Orton & Orton for respondent.
(1) The mortgaged property was sufficiently identified. That is certain which can be made certain. The authorities in this State only require such particularity of description that third persons by the mortgage itself and such inquiries as it suggests can identify the property. State ex rel. v. Althus, 60 Mo.App. 126; McNichols v. Fry, 62 Mo.App. 16, 17; Bank v. Shackelford, 67 Mo.App. 480; Williamson v. Bank, 69 Mo.App. 376. (2) Parol evidence is admissible to aid the descriptive terms employed in the mortgage and to show whether particular property was embraced. Bank v. Shackelford, 67 Mo.App. 480. (3) The $ 1,218.54 placed in the Bank of Princeton by defendant Lynam, and transferred to the credit of Squires by Stiles, by direction of Lynam, was attached and the bank garnished by plaintiff before Squires had any knowledge of the transaction. Squires never has accepted the money. He could not have done so after the attachment and garnishment. It then was and remains the property of defendant, Lynam, subject to plaintiff's mortgage and attachment. Sproule & Agnew v. McNulty, 7 Mo. 67; Briggs v. Block, 18 Mo. 283; Ridge v. Olmstead, 73 Mo. 579; Nichols v. Walker, 25 Mo.App. 368; Keithley v. Pitman, 40 Mo.App. 596. (4) The answers and the whole evidence show that Stiles acted solely as the agent of Lynam to give this money to Squires and that he never succeeded in doing so. Stiles has never interpleaded, or in any manner claimed this money as his property, although he was a witness in the case and took an active interest in the trial. Plaintiff is entitled to this money by his suit in equity and also by his suits of attachment. (5) That under the answer of defendant bank, both as defendant and garnishee, plaintiff was entitled to judgment for this money without any trial, because it admitted receiving the money from Lynam and that it had not paid it to Squires.
The facts disclosed by the record in this case may be chronologically and briefly stated in about this way, viz.: William A. Lynam, a cattletrader residing in the northern part of this State, made to Scannel & Patterson his note for $ 866, to secure which he executed a chattel mortgage in which the property covered by it was described in this way: "Twenty head of one-year-old steers, color red, one black steer calf, one white steer calf, twenty-six head of steers coming two years old, all red." And to Scannell, Foster & Co. said Lynam made a further note for $ 1,050, to secure which latter he executed a further mortgage in which the property is described as "fifteen reds and roans, one white and four blacks, also twenty-seven head of one-year-old steers, reds and roans." It was provided in each of said mortgages that in case of an attempt to remove the cattle from either Sullivan or Mercer counties the payees in the notes or their legal representatives might take possession of the cattle, etc.
Before the maturity of said notes the payees therein named indorsed and delivered the same so that they passed into other hands until one Holmes became the legal holder thereof, and after maturity he insisted on payment. Lynam not being able or willing to then make payment, he and the payees applied to the plaintiff herein to carry the same and they accordingly procured the possession of the notes and mortgages from Holmes and entered into negotiations with plaintiff in respect thereto, resulting in Lynam with one Cook executing to plaintiff their joint note for $ 2,060 with an agreement to transfer to him the mortgage notes as collateral security thereto, and accordingly the payees in the latter notes with Lynam delivered the same to plaintiff who paid over to them fifteen hundred dollars by a check for $ 1,000 and the balance in cash. The payees and Lynam, after the receipt of the $ 1,500, told plaintiff that if he would let them have the notes that they would take them to Holmes, obtain his indorsement thereon and then return them to him. Plaintiff assented to this and delivered to them the notes, but he never saw them again.
It appears from the testimony of Holmes, given at the trial, that he never authorized the payees of Lynam to sell or dispose of the notes. The payees and Lynam paid over to Holmes on the notes the check and money they had received of plaintiff. Holmes testified without objection that the payees assured him that they were to get the money of plaintiff on the note of Lynam and Cook. He further testified that shortly after the mortgage notes were returned to him, and the $ 1,500 obtained of plaintiff was paid to him, that he told the payees that if Lynam would let him ship the cattle to Kansas City and there sell them and if there was anything over after the payment of the balance due on the mortgage notes that he would pay it to him; and that the latter requested that he wait until a couple of days later and he would ship the cattle and accompany him (Holmes) to Kansas City. This was agreed to and Holmes and Lynam two days afterward went with forty-one head of cattle to Kansas City where the same were sold. Out of the proceeds of the sale Holmes was paid the amount still due on the mortgage notes and the balance of $ 1,218.54 was deposited in a Kansas City bank to the credit of the defendant, the Princeton bank. The mortgage notes were delivered to Lynam marked paid.
It appears that Stiles and Miller were sureties on a note of Lynam to Squires for $ 2,500. On October 1, 1900, the day after the sale of the cattle, Lynam gave his sureties a check on the defendant bank for $ 1,218.54, payable to "G. W. Squires or bearer." On the next day Stiles presented the check to the bank with a request that the amount be placed to the credit of Squires' account with the defendant bank. The cashier accepted the check, charged it to the account of Lynam and credited it to the account of Squires.
It appears that the cattle were shipped in the name of the defendant bank, but whether with its knowledge or approval does not clearly appear. It seems, however, that the Kansas City bank promptly notified the defendant bank of the deposit with it. It does not appear further than by inference, how the defendant bank became apprised that the deposit was to go to the credit of Lynam's account. Whether this fact was learned from the Kansas City bank or from Lynam, or otherwise, was not shown. There is no question but that the amount so deposited was the proceeds arising from the sale of part of the cattle by Holmes, or by Holmes and Lynam, and that it was placed to the credit of Lynam on the books of the defendant bank. Squires kept an account with the bank, but at the time his account was credited with the amount of the Lynam check he was absent from the State and it does not appear that he was made aware of the credit until the date of his...
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