67 Mo. App. 97 | Mo. Ct. App. | 1896
By reference to 54 Mo. App. 400, a full report of this case when it was here on a former appeal will be found. For the purpose of a general understanding of the present case, we think the statement there will suffice.
Every question arising on the record in the case now before us, except that which we shall hereafter notice, was there fully considered and determined. The only question in the case remaining to be determined is whether the defendant bank was a bona fide holder of the bill of lading with draft attached.
It appears from the uncontradicted testimony of Mr. Winants, vice-president of the defendant bank, that the Currier Commission Company was a customer of the defendant bank, and had been for several years before the date of the transaction out of which the present controversy arose, and that the course of dealing between the said commission company and defendant bank was that the latter kept an account with the former and borrowed money of such latter, both on notes and overdraft; that on the morning of the twenty-seventh of October, 1891, the date of the transaction above referred to, the aggregate amount of the notes and overdraft owing by the commission company to the defendant bank was $14,500; that by an arrangement between the commission company and the defendant bank, the former was to leave with the latter elevator receipts, shipper’s orders, bills of lading, sufficient to protect the loans to the former; that the bills of lading left in the defendant bank, without any draft attached', were to be held by it as collateral security for the amount of loans, while the bills of lading with draft attached were received, and placed to the credit of
It thus is made plainly to appear from this undenied testimony that the commission company had delivered to the defendant bank the bill of lading with the draft attached and had received a credit therefor on the books of the bank, which had the inevitable effect to reduce the overdraft or indebtedness of the former to the latter. The result of the transaction was that the overdraft of the commission company was extinguished pro tanto. There is no evidence presented by the record that in the least tends to prove that the defendant bank received the bill of lading and draft for collection and credit, but the undisputed evidence is that it received the same as a cash deposit, and that it was so entered on the defendant bank’s books of account. By the very act of the deposit, the Currier Commission Company applied the amount thereof to' the reduction or extinguishment of its debit or overdraft.
It has been for quite a while the settled law of this state that the fact that a bank exercises the right to charge the draft back to the account of the depositor, in case it is not paid, or to call upon such depositor to make the amount thereof good by his check, does not in any way change or affect the ordinary legal relation ' of banker and depositor, which relation is that of debtor and creditor. Ayres v. Bank, 79 Mo. 421; Bullene v. Bank, 79 Mo. 426; Bank v. Rose, 60 Mo. App. 585. By giving credit for the draft, the defendant bank became a bona fide holder of the bill of lading to which it was attached. Newark on Bank Dep., sec. 87; Morse on Banking, sec. 573. The extinguishment of the overdraft of the commission company by the deposit of the said bill of lading and draft thereto attached, in the light of the many authorities cited in the brief of
The effect of receiving the bill of lading with check attached and giving the Currier Commission Company credit for the amount of the draft on the books of the defendant bank, as so much money deposited, against which the former could immediately thereafter draw, was to make, as we think, the defendant bank a purchaser for value. Such being the case, the title passed from the commission company and vested in defendant bank, so that the latter became the absolute owner thereof. Kavanaugh v. Bank, 59 Mo. App. 540; Benton v. Bank, 122 Mo. 332.
And since the overdraft of the commission company to the defendant bank was an antecedent debt, the taking of the bill of lading with the draft thereto attached, in satisfaction or extinguishment of such overdraft, rendered the defendant bank a holder of such bill of lading and draft, a holder for value.’ Lawrence v. Owens, 39 Mo. App. 318; Redpath v. Lawrence, 42 Mo. App. 101; Napa Wine Co. v. Rinehart, 42 Mo. App. 171; Strauss v. Hirsch (not yet reported); Dymock v. Bank, 54 Mo. App. 400; Bank v. Frame, 112 Mo. 502; B. & L. Ass’n v. Bank, 126 Mo. 82; Hodges v. Black, 76 Mo. 537; Fitzgerald v. Barker, 96 Mo. 664.
In Dymock v. Bank, supra, we are reported as saying that: “Where a bill of lading is taken as collateral security for, or in payment of, antecedent indebtedness, the holder acquires no such right to the goods as cuts off the vendor’s right of stoppage in transitu.” It is obvious from the context that what we meant to have said was that, where a bill of lading is taken as collateral security, and not in payment of antecedent
In Bank v. Railroad, 62 Mo. App. 531, it was said by Judge (Jill, who delivered the opinion in the case, that “the delivery of the bills of lading to the bank effected a pledge of the property, to the same extent and with the same validity as if it had been actually delivered. The bills of lading were symbols - of the grain — represented it — and their transfer by delivery stood as an actual change in the possession of the grain itself. The plaintiff bank held the property as collateral security for advances made to the Currier Commission Company, and so far as it was necessary to the holder’s protection, plaintiff had the legal title and was vested with all the rights and remedies of a purchaser for value.” The foregoing remarks were made in relation to the rights of the bank, under a bill of lading •deposited with the defendant bank by the commission company as collateral security. In the present case, the bill of lading had a draft thereto attached and was taken by the defendant bank as so much cash deposited, which was passed to the credit of the commission company and against which it could, and did, draw its •checks. So that the defendant bank’s rights in respect to the grain were far more impregnable than in the case just referred to.
From the foregoing considerations, it is manifest that the instruction given by the court on its own motion, in effect asserting the theory that before the defendant bank could recover it was incumbent on it to prove an agreement or understanding whereby it took the bill of lading and draft in part payment, or in extinguishment of the overdraft of the commission company, and that in the absence of such proof it neither paid anything for the bill of lading and draft, nor did it change its position, nor suffer any loss and,
In any view that we have been able to take of the case, we think that both law and fact are with the defendant and the judgment, which is against it, must be reversed and the cause remanded, with directions to enter judgment for the defendant bank.
