Dixon v. Jackson Exchange Bank

149 Mo. App. 585 | Mo. Ct. App. | 1910

GOODE, J.

Action for $823.37, alleged to be money which was received by defendant to the use of plaintiff. The cause was referred to a referee by consent, but it was one for .reference without consent, because it involved the examination of a long account between the parties. The referee’s report was in favor of a judgment for plaintiff in the sum of $914.78, the amount sued for and interest, and judgment having been entered by the circuit court for said sum, after the argument of exceptions to the referee’s report, this appeal was prosecuted from the judgment. Plaintiff was reared in Cape Girardeau county, of which Jackson is the county seat; but more than twenty years ago he removed to Oklahoma, where he has resided ever since. When he left Missouri he entrusted the collection of obligations due him to Eli Abernathy, who acted as agent for plaintiff until December, 1900, when, at Abernathy’s request, he was relieved of the agency and Henry R. English was appointed in his stead. Abernathy turned over a few notes to English on which was collected in the course of time, $1165.40 and deposited by English to the credit of plaintiff in defendant bank, of which English was president and bookkeeper when he was appointed agent for plaintiff, and continued to be until July, 1906. English was authorized by plaintiff to pay out of the money he collected the dues 'of plaintiff to the Ancient Order of United Workmen, as they matured from month to month, and he also paid some court costs that accrued in collecting the notes. English opened an account in defendant bank in the name of plaintiff, in December, 1900, when he first became agent, and checked on it every month to December, 1903, to pay plaintiff’s said dues; and during those years checked twice for court costs, one item of which was a fee of one dollar for recording a transcript, and the other item was seven dollars for court costs. English collected no considerable amount until May, 1901, when six hundred dollars was paid, and thereupon he wrote plaintiff he had placed the money to plaintiff’s credit in the bank and the latter answered: “I will' leave the money with your bank until I can plaee it; or if you can loan it for me, let it out.” Meanwhile and until December, 1903, English drew no money out of the account except to pay monthly dues in the aforesaid order. December 1, 1903, he began to pay out of plaintiff’s money in the bank, items of indebtedness owed by the Jackson Brick & Tile Company, a corporation English was president of and controlled, if he did not entirely own. Between December first and twenty-first, 1903, English paid out in that way over three hundred dollars, according to the statement of account furnished by the bank. Until that time no transaction in the form of a loan to the Tile Company of plaintiff’s funds had occurred, but on August 21, 1903, English had written to plaintiff the latter’s balance in the bank was $927.44; that English could lend it at eight per cent; if he made the loan would hold himself personally responsible, and the party would want it for one year, with the privilege of longer time. Plaintiff answered September 7, 1903, to let “the man” have the loan for one year, or longer, and if he did not want it, to try to place the money at once on some terms. December 21, 1903, English executed a note for seven hundred dollars in the name of the Jackson Brick & Tile Company, per H. R. English, president, payable to the order of plaintiff, with eight per cent interest, and indorsed it on the back. No money was turned over to the Tile Company, nor was a check for said sum drawn on plaintiff’s account in favor of the Tile Company and credited to the latter on the books of the bank. Plaintiff never was notified of the execution of the note to him, nor that the Tile Company had borrowed money from him, and in fact knew nothing of the transaction, as no report of it was made to him and the note was retained by English. Prom that date (Dec. 21, 1903) until April 20, 1904, English drew many checks for his individual purposes and for the use of the Tile Company, or to pay debts it owed, and these checks were paid by the bank’s officers out of the money on deposit to the credit of Dixon. There were about sixty of these checks, and they appear to have amounted to more than twenty-one hundred dollars. During the same period and up to 1905, English deposited to plaintiff’s credit money of his own and of the Tile Company to the amount of over seventeen hundred dollars. Meanwhile he drew checks every month to pay plaintiff’s dues to the fraternal order and made a few deposits of plaintiff’s own money to the latter’s credit. The checks paid out for the benefit of the Tile Company or of English were not signed in plaintiff’s name, but in the name of the Tile Company or English. Both English and said company became insolvent and the former ceased to be president and bookkeeper of the bank in July, 1906. In August, 1906, the bookkeeper who succeeded English wrote plaintiff that his account had been drawn on by English, and as. plaintiff’s letter authorizing this was not on file, the bookkeeper’s letter was written to ask confirmation' of English’s authority. Plaintiff replied asking á statement of his account and saying English had been authorized to pay assessments and dues to the Ancient Order of United Workmen, and had said he would try to keep plaintiff’s money lent out so as to make interest and pay his assessments. The statement was furnished, no cancelled checks being returned with it, and showed plaintiff’s account was overdrawn to the amount of $416.80; whereas plaintiff claimed his balance in the bank was $823.97, or the sum of the amounts of his money deposited to his credit by English, less what had been drawn out to pay dues and the two items of court costs we have mentioned. The referee made an elaborate report and we do not dissent from his findings, but think it is unnecessary to recite them in full. The material facts found, were, that English was plaintiff’s agent to collect notes and pay assessments to the Ancient Order of United Workmen, as they fell due out of his collections, and for this purpose to withdraw money from plaintiff’s account without having checks signed by plaintiff in person; that English collected $1165.40 for plaintiff and. deposited the money in the bank and drew on the account for legitimate items to the amount of $342.13; that the note for seven hundred dollars executed by the Jackson Brick & Tile Company to plaintiff remained in the possession of English, never was delivered to plaintiff' and the latter had no knowledge of its existence; that after the execution of the note English made deposits to the amount of $901.95 to plaintiff’s credit of the money of the Jackson Tile Company. It will be perceived said amount is much less than the seventeen hundred dollars, or more, the account shows was deposited by English to plaintiff’s credit, after the execution of the note, to offset his drafts on the account for his own and the Tile Company’s use; but some of those deposits were of English’s own money.

The main contention on the appeal is that English was general agent of Dixon and might treat the latter’s money as Ms (English’s) own and make such representations to the cashier of the hank to induce him to pay checks out of plaintiff’s account as he (English) saw fit. The record will not bear out this view, for the only fair deduction from it is, that English was agent to collect notes due plaintiff and take whatever steps were necessary to that end, including payment of court costs and also to pay his dues to the fraternal order.

It is further contended the relation of debtor and creditor did not exist between plaintiff and the bank; an untenable position, because English was president of the bank and as its bookkeeper wrote plaintiff he had deposited the latter’s money to plaintiff’s credit in the bank and plaintiff then answered he would let it remain in the bank until it could be lent out.

It seems Dixon was at Jackson on a visit and in the bank some time during the period English was making use of his money, and did not ask the bank for a statement of account or what his balance was. These facts are invoked to estop plaintiff, but the position is so devoid of merit it hardly can be argued. Not an element of estoppel was shown. Plaintiff had no passbook and had never received at any time a stated account in which he had acquiesced. The most that can be said is, he felt confident of the good faith of English and the solvency of the bank, and no suspicion had entered his mind.

As far as the ostensible loan of seven hundred dollars to the Tile Company is concerned, it cuts no figure in the case. It was a sham and really had nothing to do with the payment of money out of plaintiff’s account for the use of the Tile Company and of English; for that course of business had been followed before the note was executed and was carried on to an amount greatly in excess of the face of the note afterward. Not only was the party mainly culpable the chief officer of the bank, but the cashier paid checks drawn in the name of tbe Tile Company and of English for years with plaintiff’s money without reason to believe the payments were for the benefit of plaintiff and when well aware they were not, but for the benefit of said company and English. There was no semblance of authority for such conduct by the bank’s officers and nothing can be made of the case except a misappropriation by them, and particularly by English, of plaintiff’s money — a conversion of it by the president of the bank. The responsibility of defendant is beyond doubt and the judgment will be affirmed.

All concur.