*1 705 judgment accordingly reversed, court of the trial is Campbell, C., remanded for trial. is new concurs. cause adopt- foregoing opinion of Reynolds, C., PER CURIAM:—The is opinion reversed, court. The and the ed as n Shain, J., J., Bland, is remanded for new trial. P. concur. 1938.
MARCH, E. Carter, Respondent, County, E. O. G. Missouri; Moberly, Finance; Commissioner Deputy Special Appe
Lancaster, Finance, Commissioner (2d) llants. 152. 108 S.W. City Appeals. May 4,
Kansas Court of 1938. respondent. Collet for
J. A. Walsh, E. Boy appellants.
Jerome Merrill and W. Rucker for L.
n
CAMPBELL, 25, 1927, Plaintiff’s petition that June C. Clavin, John Welch daughter, owners Edith Missouri; county, Welch and in Chariton *2 daughter Bank Chariton had become of indebted to the $22,134.70, county, bank, hereinafter the in sum Missouri, called the by notes, was to evidenced that indebtedness secured said and conveyed; was by the bank in which the land deeds of trust aforesaid discharge convey daughter Welch land in that his offered said and to buyer price the land indebtedness, but as there was at said no the indebtedness, the satisfy which would board of directors said to bank to bank that the interest of the decided would be best who hold conveyed a trustee the would land to be to bank the applied be in proceeds the same until the land could sold and the discharge debt; thereupon it was between the said that the would be reduced plaintiff bank and that said debts officers the equal $11,710 by payment amount of amount in the the that Taylor plaintiff, Zillman, Brandt, by sums C. John D. and would subject unpaid portion the that the of said debts land and to conveyed agreement plaintiff express understand to with the and bank ing by plaintiff, his officers of the and between associates and plaintiff, man by the would the land title to the land held pro the aged controlled for benefit of the and the use and paid to arising from rental of to be the ceeds the the land realized amount if when said be sold the and land should and discharge debts, the would therefrom said bank was not sufficient plaintiff advanced said associates for plaintiff understanding by them; of' under terms said sum $2,927.50, which said associates each advanced bank his Welch; pursuant on debts of and credited received conveyed ben understanding plaintiff to said the land plaintiff rental bank; efit of thereafter collected the forty paid bank; land land same acres of paid bank; by plaintiff, trustee, proceeds sold to sell parties opportunity no interest had time have his associates plaintiff return to land sum sufficient further by sum advanced them. The over 1935; property its was taken closed its doors December on liquida proceeded in of Missouri who by the finance commissioner commission, duly with tion; claim was filed brought. denied, timely and this suit denial. general answer was a a verdict
Trial to a resulted appealed. have $4,395.15. The defendants sum 25, 1927, June John Welch and his shows that on The evidence of land daughter, Clavin, Edith about the owners given county, theretofore Missouri, they had deeds bank in payment of trust their notes secure by $21,710. face amount criticised loans been department by finance excessive considered and were $11,710. “readjustment” in the sum of Edith loans the. conveyed Clavin lat- her interest $10,000 ter executed his note the sum the bank and secured thereof land. The balance deed of notes, $11,710, directors, four of namely, Taylor, Brandt, plaintiff, equal Zillman amounts. Welch,.as conveyed transaction, the land to executed “a trust” in which it was declaration of conveyance recited that had received from Welch. “That I while title absolutely, the record said land is vested in me *3 Henry hereby myself, declare that I title Zillman, W. hold said for A. Taylor; -equal Brandt and D. jointly that we same in own the agree shares I and said convey any time that the said parties any may or me. two of them direct I further declare day I have this executed of Farmers and delivered to Cashier Bank County my of Chariton conveying in blank deed said land I and authorize the of any Cashier said bank at time insert the any of persons, name of any one the above named or person that they, persons, may direct, above named deliver and said designated deed the terms and by conditions be the said Zillman, Taylor Brandt myself, living.” and and if The declaration of trust and the “deed in blank” were delivered the cashier of the bank. possession land, Plaintiff took it, paid of the rented bank, acting through cashier, rental to the bank. The sold forty proceeds the land retained of sale. When the $11,710 paid part one-fourth the bank the cash- frim, (money) ier said “that paid would be back.” entire “readjustment” brought through above about stated mutual understanding between all active members of' the board of six in Brandt, directors of number. board, to the “older members” of came board of directors of money paid suggested bank and them back,” proposition be a “ought paid w.as made that part a by plaintiff money paid to the bank associates be given.” Objection deposit be “certificates made to the banking conditions. Thereupon proposition on account active bank, including cashier, writing' members of a Welch, prior July, it was stated owed interest), a debt was (evidently $22,134.70 secured pay unable to trust; debt, plain- and deed would tiff agreed title of the land associates the record would be vested associates plaintiff; and his said pay being the time to the bank “it $11,710, the sum of understood at the ac- payment by parties that the was made for said the aforesaid afore- payment, commodation of bank. At time said said against held, of trust said land said still a first deed holds $10,000. in the amount of between was understood and parties bank at the time said and the board of directors of said parties they aforesaid were unable payment such if $10,000 dispose pay first deed said land for a sufficient sum to fully said sum of due and to them $11,710, persons reimbursed out of the aforesaid money belonging to said bank.
“Now, Carter, Therefore, protection E. A. of the aforesaid we, Eillman, Brandt, Taylor, the under- C. H. and John D. majority of signed, constituting owners and holders hereby County, Missouri, stock Bank Chariton the Farmers par- agree disposed of, that when shall if the aforesaid said land any aforesaid, shall suffer and. ties loss because County then board of directors of loss, fail, persons refuse said said shall reimburse the said that the matter stockholders of the shall submitted to the meeting, jointly, sever- their action at stockholders’ we according our pledge will cast votes ally, ourselves that we our reimbursing parties the said stock in bank in favor of said ’’ they shall loss sustain. department. transaction was to the finance The entire disclosed *4 “The 1933, in to the bank as follows: loan department wrote The estate,’ it set reality in real is ‘other should John "Welch ’’ reply proper president account. In up your books under as follows: of the bank wrote letter acres, years ago, tract of 435 Loan: Some this
“John Welch interest held, Welch, and one-half in one-half interest was neighborhood $20,000.00. daughter. ran up This loan that have by the this loan would time, it was decided board that At board $10,000.00 basis. Four members of the to be reduced $10,000.00 of money but put sufficient amount up a subject $10,000.00 loan, was land, deeded loan. The this blank, Mr. time, Carter a deed At that executed E. Carter. Mr. trust, which he together he declared with a declaration members of benefit of himself and the three title for the held the desired, or him; that, any was it with time board associated sold, paid, the bank debt done, the land would could equal shares, mem- distributed, the four price balance of the sale
709 money. bers of the board not paying this has property sum of This been deeded but is dec- still held under the terms of managed Carter, laration of pro- trust. The is Mr. farm applied ceeds to the and interest.” taxes upon
The evidence further entry shows there was no records of the relating action of its board directors concerning any of the matters stated. above refusing point defendants’ court first that the erred
requested instruction in for the nature of a demurrer the evidence there showing the reason was directors no board evidence of the bank for any ever consented to loss might loan, have in connection with and that sustained disapproval there no written approval was record of of the trans- action with reference the Welch loan. arguing point
In say this defendants records subject litigation;” bank are silent “on the this board of required every directors of the bank were lawby keep a record $100.00', financial involving transaction than and that more section 5936, 1929, Revised provides Statutes that “no bills shall be payable ” . except made . . with consent of directors. the board
In Lyons, the case Union City National Kansas S. Mo. it loaned Lyons which the defendant was at trial time receiver, the $10,000, through sum of borrower its cashier loaned. note re- executed note sum several pe- newed times. The last note renewal to’ attached tition prayed thereof. amount The court permitted lent, doing so to recover said:
“This note, respondent’s suit is not bottomed suc- cess in depend upon validity this case does not instru- ment. power is sufficient appellant to borrow the money, fact it did it. There borrow was sufficient vital- . ity appellant and force in this transaction to enable receive-the $10,000.00 respondent, enjoying from after now, the benefits thereof, attempts repudiate it transaction. the entire so far concerned, this thory wholly it is ap- case is immaterial pellant’s promise was in a not contained note which was If according repudiates law. the note reason that- the execution, Board not of Directors had then authorized this court *5 injustice money would sanction rank hold not all. Such is not the law. need The was not exempt obligation justice from the common do which binds individ- obligations upon persons, uals. rest Such whether natural or ar- money, If tificial. the bank obtained and mistake or without au- duty thority of note, law then it was its therefor an invalid those general obligation justice under it. -Under this to do to refund re- obligation appellant to implied part an conditions arose on the pay money so the obtained.” trans present make a record case failed to may profit
action such failure. This it and now seeks to because of al., [Lyons case, supra; not do. Ferrell Milford Bank et State (2d) 19 S. W. 312.] upon The con- petition a defendants further declared contend tract plaintiff, between his associates and the bank and au- recovery necessary, to cite implied was on an contract. is not thority upon an support pronouncement an action implied contract. express recovery contract not may be had on an However, present this defendants. Plaintiff’s rule does not aid allegations to petitions not The express based contract. an understanding” express “agreement effect that there was an convey- plaintiff concerning between officers attending trans- the facts of the land was mere narrative of ance The fact that action and was no the cause of action. ad- pleader make the the cirfeumstances caused him to stated petition not action. vancement does affect nature of proof received. The sus- stated action had and submit allegations proper the case tained and it was therefore n jury. requested refusing The defendants contend court erred plain- B. told the instruction instruction would have This pre- proved by tiff was unless not entitled to verdict agreement be- ponderance express there was of the evidence that an into in plaintiff, tween his officers of the entered associates and plain- June, 1927, by terms which $11,700'. advancing tiff and associates for loss he sustained in correctly reasons stated instruction The court refused' Defendants’ criti- in our discussion of the demurrer to evidence. theory upon the 1 is instruction No. based same cism of the refusal support them in their claim error advanced petition. B. instruction followed their instruction- Plaintiff’s the evi- allegations supported by sufficient, its proper. instruction was dence, which it follows from argue the declaration of The defendants recitals president, written letter of bank’s the statements acting on were not for and and his associates show signed by the of trust was not- bank. The declaration behalf of not Hence, instrument were conclusive the recitals in the bank. precluded by statements nor was the *6 letter. It may be that the oral evidence was in conflict with the state- ments the letter conflict with recitals in the declaration of trust. Be may, itas the conflict, if any, for the considera- tion of its verdict we are bound. is affirmed. Sperry, C., concurs. PER CURIAM:—The foregoing opinion C., is Campbell, adopted as opinion of the The judgment court. is affirmed. All concur. Daugherty. Ray H. —S. W.—. re
Springfield Appeals. August 12, Court 1938. Reagan
FrmMin E. Paul M. Peterson for informants. <$s respondent.
Collins Pierce for LANDIS, in this Court This proceeding S. was instituted P. disbarring purpose disciplining the State Bar Committee for the Ray Daugherty, County H. Bar. member of the Greene authority Com- appointing Special
Under the an order him law, A. report finding missioner take of fact and evidence Plains, Missouri, Springfield, W. Landis of hearing West held a Missouri, 2, 4, having December taken and now case under the evidence advisement and consideration fact, finding parties, reports and the herewith his briefs conclusions law and recommendations in said cause. age twenty-eight years of
Ray Daugherty, respondent Bar hearing. at the time He had been admitted to the Missouri attending school April, 1931, after term a law without one college bar, After his admission to the preliminary education. Missouri, spring when Springfield, until practiced law