142 Mo. App. 610 | Mo. Ct. App. | 1909
(after stating the facts).— When this case Avas first argued before us we arrived at the conclusion that the judgment of the lower court should be affirmed. A motion for rehearing having been filed, we sustained that and the case has been re-argued and elaborately briefed by counsel. On full and careful reconsideration, we have arrived at the conclusion that our first determination of the case was erroneous.
The acts of the defendant, on receipt of the draft and attached papers, so far as the evidence in the case shows, seem to have been in entire accordance with the usual banking custom. There was nothing irregular nor unusual in defendant crediting Salmon & Salmon with the draft as a cash item and whether it was warranted in so doing is another matter. As Salmon & Salmon, who drew that draft, were not, as we hold, the
The owner of the notes alone can maintain action for conversion or for money had and received thereon.. When the notes and deeds of trust were delivered by plaintiff Cooper to Salmon & Salmon, it was a delivery to the agent of the Missouri Savings Association, the party entitled to them. They then and thereafter became the property of the Missouri Savings Association. This did not affect the right, of plaintiffs either to recover any sum due thereon, from the holder or owner of the notes, or to have them cancelled for non-payment, but it did extinguish their title to the notes as notes. Plaintiffs were no longer the owners after delivery to Salmon & Salmon and hence cannot recover.
It. is due this court to say that when this matter was first argued and presented to us, this feature of the case upon which we now decide it was not presented by counsel or dwelt upon in such a way as to attract our attention, or to turn our minds to- a consideration of the effect of this aspect of the case. For the reasons now stated, the judgment of the trial court is reversed.