*1 * Mo.] 311 1921. 290 Northwestern Bank.
'Grafemail v. Co. municipal being proceedings con matters of local such concurred J., J., cern. C. Ferbiss, Valliant, years city twenty had than that for more reason authority assumption create on the acted jurisdiction, a court and confer on it such such period property rights ac had been in that doubtless quired great-extent be unwise to de and would rights the exercise have arisen out of clare that upheld. jurisdiction by cannot of such Judge such courts opinion, dissenting in which Graves delivered a Judge Under concurred. the Constitution, Woodson Assembly the court. It could have created General evidently question by an academic some
considered judges. fairly susceptible of a A construction statute harmony given must be that con Constitution by clearly repugnant to the the courts. Unless struction organic upheld. [State Burton, rel. v. it must ex law, County Court, Mo. State rel. 128 Mo. ex v. 718; 427.] in this en case, But it is clear, as when Constitution, is in it is our actment contravention duty imperative what to so declare. In view of has been reasonably that the act in it cannot be contended said, question is not contravention of 1 Article Section our follows that It demurrer judgment VI to the information Constitution.
must be overruled against respondent. of ouster rendered It All is so ordered. concur. Appellant, DAIRY COMPANY, v.
GRAFEMAN BANK et al. NORTHWESTERN Banc, In November By by
1. CONVEYANCE: Unauthorized Directors. A Coloration: given signed of trust to secure a collateral note of even date, signature its and attested OP COURT SUPREME Dairy Co. G-rafeman corporation, duly acknowl- the seal of the secretary its signed stating it was the certificate president, edged whereby directors, its board of by the and sealed *2 conveyed was a place business to office, and of company’s plant in not payment note, the but security of fact for the
trustee as .five, two directors, of whom there were by of its board authorized secretary, convey- not is a valid president and of whom were the corporation, although president the bind the ance, and does not meeting of directors and no the or principal stockholder was the years. Corporate acts, for such 'as the had been held stockholders have the sanction conveyance lands, valid, to must and be of be the board of directors. by authorized ' Statutory Acknowledgment. Legislature -:-:-: 2. by board corporate are be authorized the recognized acts to that 1919) in (Sec. 2188, K. S. the form the of in statute directors contain, corporation suggested, the acknowledgment was to of a -of officer that "in- other chief the president its sworn statement of corporation;” in behalf of said signed and sealed strument was conclusively suggested merely directory, form is while such and mind, authority legislative the of the board of implies that, in the conveyances corporate land, all of element of was an directors general harmony that, with the law in- implication is in and such by statute, authorization the board of dependent the directors corporate mortgage necessary validity attempted to of a is the to president upon going plant as by its its executed money. borrowed Equitable Estoppel. Equitable -: -: -: estoppel S. recovery upon legal interposed defeat a the cannot be to title un- pleaded; where the establishes less it and evidence that the ex- regular corporate mortgage, face, ecution of the on its was not by of directors and was void, authorized its board therefore it de- note, upon corporation when sued volves the holder of the the to upon mortgage title, removed as a cloud its plead have said to and prove any equitable derogation it desires defense to assert legal although solely title. But said holder stands upon the the legal acquired mortgage, the the title court will examine the corporation’s plaintiff own evidence to ascertain whether it shows although estopped, equity, plaintiff equitable the estoppel pleaded,, invalidity the asserting mortgage is not of the and upon have removed as a cloud title. its Knowledge —--: —-: 4. -:-: of Transaction: Personal Debt President. bank, Where the most of the debt president secure which the of a executed a deed of trust, directors, long past without from its board 1921. Mo.] OCTOBER. Dairy Go. v. Gfrafeman procuring purpose
due, was created the remainder and regardless of the board of directors power deed of trust strongly it, to show evidence tends to execute and arrangement under between mortgage given and received personal seeure president the bank to indebtedness corporation, president not debts to the bank of refusing said of trust title of judgment to remove properties holding corpora- corporation’s said ground estopped said relief demand on it owed tion is through money president to the bank its executed deed of upheld. not regular it, its to secure trust face will corpora- -: -: - — : Ratification. properties of trust on its tion who executes a deed to secure was not payment.of money, borrowed invalid because he authorized cannot, by receiving execute re- it, its board of‘directors manager money capacity taining business although permitted corporation, has the directors powers over business, to exercise autocratic and stockholders trust, *3 thereby corporation estop deed of ratify said invalid upon validity deny money which the to was procured. Mortgage to -: -: Evidence: Admissions: Secure
6. Per- president corporation Debt. made sonal Admissions bank, to defendant claimed to certain indebtedness corporation, personal debt, debt of admissible enjoin equitable suit the foreclosure evidence a deed corporation, although by the trust executed said were, long after made the deed was admissions executed and to a auditing corporation's who public accountant books request of the bank. And likewise showing evidence corporation proceeds presi- of a loan were absorbed its ought question where whether dent made is admissible cancelling the invalid deed of trust condition cor- money repay poration claims received defendant such n estopped security, ground equity deny on the it was retaining sufficiency while benefits. its Appeal City from St. Louis Circuit Court.—Hon. Victor Judge.
H. Falkenhainer, REVERSED AND REMANDED.
314 SUPREME COURT OF MISSOURI, Co. v. Northwestern Bank. appellants. and Corum for
Jeffries
(1)
mortgage by
corporation
A
must be author-
Cyc. Corp.,
ized
board of
directors. Fletcher’s
p.
sec. 1299,
2274; Union National
v.
Bank
State Nat.
Leggett
Jersey Mfg.
155 Mo.
Bank,
ing
95;
v. New
Bank-
&
Eq.
N.
Co., 1
J.
Gashwiler
541;
33
Willis,
11,
v.
Cal.
20; State ex rel.
v.
Grimm Manhattan
149
Co.,
Rubber
McKeag
Mo.
v.
181;
Mó.
Collins,
164;
87
State ex rel.
App.
Schroeder v.
Mo.
Perkins, 90
603; Frederick v.
Lettney,
Irrigating.
214
El
Mass.
Fresnal
46;
Land Co.
Washington,
(Tex.
App.)
v. Bank of
182 S. W.
Civ.
Temple Dodge,
703;
v.
157; Fellows, v. Spurlock Noble v. 64; Blount, 235; 73 Mo. 77 Mo. Marsh, Dry Sproule, Mo. Rosencranz v. 503; v. 72 Swofford v„ App. Fisher, Goods Mo. Mo. Co., 518; 175 Conrad 37 Eitelgeorge Building v. 69 Mo. Acton v. Assn., 52; 352; Dooley, Hydraulic Mo. Co. v. New- 74 Press Brick 63; Levering App. Garesche Inv. meister, 592; Co., 15 Mo. v. 436. 146 Mo. W. Lubke, Jr., Walther,
Geo. W. Lubke, Geo. respondents. Muench & Hecker for corporation,
(1) who aof business management who, affairs, fulLcontrol and of its has without directors, objection part of on the the board buys money, pays per- real and borrows dividends and corporation, implied property author- for the has sonal conveying ity deliver a of trust to execute and deed money estate re- real borrowed corporation. P. R. Sinclair Coal Co. v. ceived Hydraulic Mining 266; Strother Co., Missouri 207 S. W. Tyler Hoffmann, 246 Mo. Estate v. Barrow, 241; App. Danglade Mo. Co. v. Land S.'W. 520; Co., though execute a And even he had no payment money of trust borrowed for secure money corporation, corporation. if the retains the through fully received his unauthorized act, *5 316 OF MISSOURI, SUPREME COURT Northwestern Bank. Co. v. repudiate trust. cannot the deed ratifies the same and Mining Taylor, Richardson, v. 1; v. 247 Mo. Smith Co. Campbell Pope, App., 472; 96 Chou- 430; 77 Mo. v. Mo.. y. Love Ill. Gale, 136; v. Mo. Darst 83 Allen, 290'; teau 70 App. Metropolitan Doerr 102; Ill. 184 Assn., v. v. Church Spruks, Fandango 318; Lumber 31 Cal. Shafer v. Co., Weathersby 474; Lumber Tex. Fed. 107 480; 225 v. Co., (Tex.) Clark, Clark S. Bank Elmendorf, 538; v. 78 W. v. Mill Rapids Flouring Co., 138 Ga. v. Grand 798; Witter y. 41; 78 Bullen Milwaukee 109 543; Co., Wis. Wis. Co., 235; Chestnut Co. v. Record Pub. Pa. St. 227 Henry 282; 43 Kan. & Morris, Sherman v. v. Colorado pp. Corporations, App. 2489; 10 Colo. on Co., C. 14; Cook Mortgages, Annotation on secs. to' 124, 127; Jones (2) Weathersby 1446, A. L. R. 1477. v. 7Co., Lumber. by the excluded Grafeman, declarations William representatives court made the absence principal. were statements favor of defendant, competent they, As such were neither nor relevant properly App. excluded. Proctor Loomis, were v. 35 Mo. 482; Sira v. Railroad 115 Mo. Hall 34 Co., 127; Hall, v. (3) Supp. 314; Ind. v. 82 N. T. 511. Gilmour, Havens equitable plaintiff It must, seeks relief. therefore, equity, do and the court must consider dis- facts plaintiff’s closed which tend to record, show that complaint is not well founded. v. Mo. Ess 139 Griffith, Cyc. Bremen Bank 104 322, Mo. 16 332; Branch, 440; v. apparent 809. If it from the becomes evidence that the equity, cannot recover for want of it is not necessary showing equity the facts this want of pleaded. expressly 332; Ess v. 139 Mo. Griffith, Young Curtis v. 162 Mo. v. Moore, 442; Mo. 79 Glascock, 576; Mo. Price 138 Hallett, 561; McDonnell v. Bed- gasso, Cyc., Mo. 16 275; 175 675 to 785:
BROWN, suit instituted in the C. This Circuit City Court for the Louis October 1918. St. Its general purpose to cancel and set aside certain promissory plain- purporting to executed *6 one teller the of defendant Oonk, tiff alleged April as collateral 19,1917, on hank, plaintiff equal amount; to said an of bank of indebtedness of and a deed trust to one to set aside cancel and also payment of the said notes.' to secure trustee, Schulte, principal of note for the sum of notes These consisted for the sum interest notes $50,000 and for semi-annual property trust which the of of each. deed $1375 city convey purported of was real estate in St. principal alleged the amount Louis be worth note or more. signed appear to instruments with the
These corporation by plaintiff G-rafeman, name William of * president. of At institution trustee, the time of the suit already proceedings to foreclose instituted Schulte, bank, the deed of for the defendant trust and had Oonk, collateral notes had been transferred pursuant its terms. for sale advertised land foregoing al- petition, facts, to the addition leged: notes of trust were “That said and said deed plaintiff; purported said never executed by the notes deed trust never authorized and of were plain- nor board of stockholders directors, money plaintiff. any other never received or tiff; thing H. Oonk or William of value from said purported person, notes and of said other account plaintiff the considera- trust; deed of never received purported alleged trust, deed tion notes and Grafeman executed said said if the and that said William
purported trust so on his own and he did notes deed of authority, responsibility, without account and and plaintiff, knowledge defend- consent and and at time of facts, ants well knew quiring such ac- all alleged ownership and and their interest purported well knew and said and deed trust notes negotiation trans- facts; that- and understood such if purported fer of not restrained notes is said real estate under if the canceled, *7 the land in the collateral in described trust carrying dairy on the for business it had in been corporated, May duly and that 17, 1917, said notes, indorsed Oonk without recourse, were delivered to plaintiff, pledging writing with contract a them payment to the defendant bank as for the at maturity promissory of another note executed de and k by plaintiff day, fifty livered to the ban on for payable thousand three months dollars, after date, per interest at five and half which was cent, renewed maturity having for like term; and default been .at made, payment pledge in the of the renewal, the duly according terms, to its foreclosed, and thereby acquired bank had to the title collateral peti notes secured 'the trust in the deed of described injunction tion. It therefore asked that the be dissolved proceed permitted and the bank be to with the foreclosure. ordinary
The answer count in next contains a form, principal coursq, judgment holder in due on the for April note and for the mort- foreclosure gage. judgment upon
It next asks foreclosure all and mortgage alleged which were notes, have become prior due reason of-the defaults. Mo.] . TEEM,
Grafeman Dairy Co. v. Northwestern Bank. plaintiff, by replication, pnt in The issne the new particularity in the answer, matter and reiterated with petition the statement of the that the not did execute or authorize the execution of the deed of trust in.question, signed averred that if and name or affixed affixed or caused the seal of the plaintiff corporation to the instrument was his apd corpora- own without from the account, plain- or its and that the tion, tiff stockholders, directors or no consideration therefor. received plaintiff corpora- are that the facts evidence organized incorporated tion 1892, with a capital thirty stock of hundred thousand dollars, one dairy to the Grafeman, succeed business William capital which it did. stock increased from time finally to time until it hundred four amounted forty paid. thousand dollars It took over and continued dairy and he Grafeman, of Mr. continued business manage continuously be its its business up to the on December death, time of his which occurred family. being own 21, 1917, the members his directors pre- At time of and for these transactions several years, vious board had himself, consisted nephew, son, brother-in-law, a' and a brother years, who the last ten twelve Mannebach, was, secretary and, corporation attested, president’s *8 request, seal attached first, to the of trust. This refused had, do, he busi- finally but to see some was taken corporation, ness friends of the and consented their Grafeman owned Mr. advice. While William twenty-four stock- most there were other of the stock, among had Obernier, Mr. who holders was named, whom years many bank, for cashier been defendant through had been transacted. and whom this business par He ten each. owned value of shares $100 question There Mr. is no William Grafeman plaintiff had at all the business of times conducted own. with the if it been his Neither same freedom as had OP COURT SUPREME Dairy Co. Grrafeman meeting for had held nor directors the stockholders nothing indicate years. There several knew than Mr. Mannebach other or stockholder director after until trust suspected the deed the existence or question pertinent although records death,
his were between only association done business The in court. the stockholders and Grafeman Mr. William payment to them him to have such seems represented had respectively dividends as of such During time. payable time to become accrued and of their years made was no record the later .declaration. a stock- mentioned as we have whom Obernier, Mr. company conducted and who in the holder witness, aas called issue, transaction in was his bank the up May 1917, and 17, that on substance, testified, personally owed Grafeman to November William 9,1917, day the first named that on the his bank $45,000, Company of which owed it $50,000, Grafeman day, November 11, on $20,000 advanced that $10,000was April on 16, 1916, $10,000 on October 1915, $10,000 produce the notes not nor describe 1917. He did represented before was con- indebtedness this single note $50,000 solidated into mentioned to Mr. were also the answer. collateral notes Oonk although April Mr. dated 1.9, indorsed Grafeman, May were the date of the consolidation delivered company’s previous indebtedness the advance- All ment the bank Mr. was done $10,000. last business with papers alone. The Grafeman were al- ready signed brought exception to the bank when with of the collateral their indorsement. notes with suggestion security
This collateral taken at the beginning of the bank examiner made about the year. He talked about it “around February require some him the bank time,” told should give and he said he could collateral, requested a deed of trust and loan $10,000. an additional No given April at the time of the advancement on 20 of an additional $10,000. witness him he told would have. *9 321 Mo.] Co. v.
G-rafeman meeting, he men- not know whether and does a to hold particularly. He directors stockholders tioned of the meeting the execution to authorize a demanded holding of of the no notice He received of trust. deed any paper, and meeting. the official record, He read says,- meeting he would, notice of a been a there had and Grafeman for the records, asked it. He have seen up. trust was The deed them he send told him would already delivered. recorded when for a statement and
The witness asked public going “the have Kessler him he told Although prepare the witness knew one. accountant” making a statement, was at work that Mr. Kessler might in- Mr. Foote have never it further. insisted on charge matter. He first became sisted; he of that had suspicious company when the bank of the credit of but he collateral, recommended still'considered examiner good worthy the loan of credit vas with the He considered both indorsement of Grafeman. loans, good aggregating $95,000, Grafeman’s indorsement, up to time death. of his participation respect
With his transaction this witness also testified as follows: you
“Q. told Mr. Grafeman Now, also he would you copy have to board of the exhibit to resolution authorizing of directors and stockholders you deed of trust and did not? note, A. Yes, sir. you copy “Q. Did ever see such minutes or them? A. him for sir; I asked but he it, said he No, going up. to send getting up, “Q. And without him to send it with- making investigation, you
out him further advanced ten additional thousand dollars and took right? A. trust, is that Yes—we took the deed of trust. you
“Q. As a matter him of fact never asked after- meeting wards or whether not he ever of the stock- holders board of directors? A. Yes, I sir, did; I him asked several times.
“Q. You him asked A. times? several Yes, sir. 290 Mo —21 OP MISSOURI, COURT SUPREME *10 Bank. Northwestern. Dairy Co.
Grrafeman you trust deed received this even after And ££Q. meeting, he held a kept asking or not you him whether on you not? did meeting kept urging you to hold a him
“Q. And the resolution I him for No, A. asked afterwards? board. you it wanted a Obernier, isn’t fact you “Q. Mr. the ten advanced the time April of trust deed this thousand it at A. We wanted on 20th? dollars that time? trust came the deed of isn’t that
“Q. Well, how requested Why, April it—he A. we 19th? dated be promised up. of trust made have that deed ‘ ‘ loan thousand dollar loan—for ten Q. Por this April A. 20th? Yes. sign get you Mannebach to couldn’t Mr. ££Q. And you he? A. he didn’t. that, No, it didn’t told you went ahead and this ten And so advanced “Q. April 20th without deed trust? thousand dollars on April A. On 20th? April on you A. Yes.
££Q. 20th? Yes, April “Q. And saw this deed of trust 19th, you? A. didn’t sir. Yes, speaking April
££Q. 19th? A. am on that I Not day, didn’t see no. it; I you
££Q. did see When first that deed of trust? A. May On 17th. prior
“Q. You it it never had seen A. that? No. ££Q. You don’t know how that this is dated comes April day, A. It 1917? No. was made out that 19th, suppose. I you got
££Q. Now, after this deed of trust, on the day, presume, you City same I sent Hall to be you? A. recorded, didn’t No, that was recorded when I received it. you day
££Q. The A. received it? don’t know I day whether the not; it was or recorded re when we it. ceived Mo.] OCTOBER TERM, Oo. v. Northwestern
G-rafemau yon re- wben It bad been recorded “The Court: ceived it? A. Yes. already recorded wben It Q. SimpsoN: “Me. yon received A. Yes. it?- yon get of trnst on “Q. Then didn’t tbis deed day you got simply of Deeds’ from tbe Recorder card — saying for record, on file office that a trust right? suppose I I remember isn’t that A. can’t so; just whether or a card. we bad tbe deed that, get yon so to “Q. takes month Well, know A. deed back? Yes.
“Q. Yon deed of trnst recorded be- know this was yon fore A. sir. Yes, it? received yon say “Q. Outside of tbis trnst which' deed of yon gave Mr. Grafeman on tbe Grafeman behalf of yon Dairy any Company, do know other deed trnst Dairy Company’s that William executed Grafeman on the property? A. sir. No,
"Q. You don’t know of ever deed be made on Dairy Company’s property, yon? tbe A. do sir. No, just “Q. At be tbe time made last loan, prior May to tbe time be made tbis last loan on 17, 1917, yon get told Mr. be Grafeman would have statement company’s yon of tbe A. affairs, did not? asked for We yes. statement, yon going “Q. And-he told be have Mr. prepare Kessler one, did not? A. I think be said yes. that, get yon
“Q. Did A. ever that I statement? believe I not; would have to refer Mr. Foote. yon
“Q. Did ever ask Mr. Kessler tbe state A. ment? No, we asked Mr. Grafeman. Í believe Mr. telephone Foote d —. “Q. Yon Mr. making knew Kessler was at work yon statement, did A. not? sir. Yes, you getting “Q. And never insisted on it? A. Mr. might getting Foote charge have on insisted it—he has that. charge “Q: Mr. Foote have would of that? A. Yes. OF COURT. SUPREME Dairy Co. v. Grafeman getting A. it! not insist personally did “Q. You No. suspicions yon become did first “Q. When Company! Dairy A. When credit of Grafeman some receive we should examiner recommended for our loans. collateral suspicious you get the credit of then Did
“Q. pro- you suggested that company, the examiner when suspicious you make somewhat cure collateral —did say can’t it did. A. INo, credit! worthy company You still considered “Q. A. sir. Yes, credit! your you loan considered And still
“Q. good A. of William Grafeman! indorsement sir. Yes, suspicious your bank first become When did
“Q. good company, without the loan wouldn’t they don’t know as ever Well, some collateral! A. I good. felt that wasn’t good they If ever it wasn’t
“Q. felt has A. is that Yes. died, since it? Up you time of his considered the “Q. death good Company both loan of Grafeman you A. sir. did not! loans, Yes, you required security *12 only the reason was “Q. And by of the the bank reason recommendation of examiner! A. Yes.” public H. Kessler,
Mr. E. a certified G. accountant city capacity Louis, of testified that St. plaintiff corpo- an he made examination the books August September, purpose ration in for 1917, making balance sheet audit its assets and liabili- request ties, Mr. William Grafeman who said promised he to the statement Northwestern up Mr. Foote for the bank him once called or twice and proceeding whether prep- asked him aration he was with the balance sheet when he would be through. July statement was of The 1917. It 31, was Dairy Company, made from the books of Grafeman Mo.] CO*4 XO Bank., Dairy Grafeman Co. v. which bank obtained from information
and company on no record There was business. did question be- company loan the $50,000 books of entries two yond pass and one or entry book in the previous one was growing into loan which out of them One account. on the Grafeman consolidated appearing on the $20,000, 1915, on November 30, was ledger company’s Grafeman. account William in the explanation the books of this whatever There no any light upon nor show it; that would throw journal if any it. connection with On bank had charged Had cash. to Mr. Grafeman credited money have bank it should from the been obtained payable. charged to bills credited to cash and ledger October of date an item the There is Grafeman, with in the account of $10,000 nothing bank. derived from indicate that was entry. journal any in the such indication Nor is there might amounting to have been $30,000 These two items appears upon entry the bank. com- No derived pany’s two of $10,000 as books of. account items April $50,000 in the note of 19, 1917, each included company amounts or either of that the received those them. completing
On the audit the furnished witness copies. Grafeman with three then “Hoes that audit asked,
The was show witness owing William to the amount Grafe- objected Company?” The defendant to this man “utterly inquiry to this now,” as immaterial excepted. duly the court and Con- sustained tinuing, stated the account of the witness North- company’s Bank books western as shown differs from the account shown on the bank’s own books respects. explanation given by only several Mr. Grafeman to witness soon he as found the plaintiff’s difference. counsel then stated that prove against *13 desired to witness this admissions made Mr. pecuniary his own Grafeman interest. The court, COURT OF SUPREME Grafeman v.Co. Northwestern Bank. objection against duly made defendant on the ground that such admissions would not defendant bind permitted proceed, reserving ruling him to bank, the objection.
The witness then stated that when he called Grafe- man’s attention the difference, to and asked him how it any he whether arose, details, check, etc.—check explain to stubs, books difference so that he could charge proper thp various items to the account—neither give explain he nor Mr. Mannebach could details to it. thing only Witness was told he do could charge thing whole because it him, seemed money, agreed he had withdrawn the and he that. do That the difference the Northwestern Bank account July consisting of checks 31, 1917, not on shown charged which was books, $68,662.28, to Mr. Grafeman in the statement furnished him.
Plaintiff’s counsel then asked if witness Mr. Grafe- report any when man jection against furnished with ever made ob- charges. To those this defendant’s coun- object your sel please.” said: “We if that, Honor going objection. court said: am“I sustain I can’t life see for the of me that can how affect this.” After further talk the court continued: “Of course, this up will matter come motion for a trial. new What a person against dead own said how interest, that can you effective—I can exclude it can afterwards, your exception. my ruling save I will reserve on it.” answered didn’t. The witness witness then stated, against objection, the same the total amount charges against arising these Mr. Grafeman out of transaction with Bank $82,695.22. proceeded The examination as follows: “' you Q. Did have conversation Grafe- man with reference to the indebtedness of the Grafeman Dairy Company to the Northwestern Bank on account of fifty-thousand dollar note concerned suit? objection. MtjeNch We make the same
“Me. : *14 Mo.] 327 OCTOBER TERM, Dairy Co. Northwestern Bank. Grrafeman up something leading You are I “The Couet: morning, Simpson, Mr. on the order out of this ruled testimony. you getting by it in are Now, other man’s ought expert. feel I to he I know—I don’t this consistent testimony out— I all that it all out. will rule and rule binding testimony. hearsay it is I think all don’t that against defendant. this plaintiff, by ruling the of the court which
“To excepted duly time. there at then and the counsel, you, whether or not “Q. Kessler, will I ask Mr. you in which a conversation with G-rafeman he had procured fifty explained he the manner Bank? thousand dollars from the Northwestern object that. “Mb.. MueNoh: We Objection sustained. “The Couet: by ruling plaintiff, court the coun- the “To which excepted time.” there at the duly then and sel, that, proceeded then substance The witness state procured pass began book when this audit he first Dairy Company Mannebach, found of the from Mr. drawn or stubs of checks the- checks cancelled among Company Dairy Northwestern Bank on the company. company papers the books of That during Northwestern Bank no indebtedness showed July, the audit 1917; 1917, 1916 and since 1915, they these find checks. witness unable included note $50,000 that the further stated Dairy Company May consisted of the 15, 1917, following 1915, $20,000; October 11, November items: May April $10,000; 17, 1917, $10,000; 20,-1917, in the Grafeman None of this was $10,000. credited Dairy Company’s books. entirely upon validity
I. This case stands April 19, 1917, collateral deed of trust dated effect date note to secure a collateral Authorization by Board of payable fifty dollars, thousand sum of . accompany years date, two Directors signed ing by Mr. notes. It interest SUPREME COUBT OP MISSOURI, Graf Oo. v. Northwestern Bank. email plaintiff, Gráfeman, William and a (cid:127)member of its board of directors, bore seal corporation, was attested Mr. Mannebach, secre- tary, acknowledged duly' president, and was stating certificate done of its board of directors. president, board of directors consisted of the
secretary, and brother-in-law, bis three near other rela president. by-laws Although provided tives of the monthly yet meetings, directors should hold .that says provision defendant bank in its statement that “that only in was honored never breach, its in ob its servance. at first the While directors met at least an nually, yet empty even form omitted in years incumbency.” last three or four of Graf email’s They mortgage, sug never acted not is gested signed except that either them, the two who attested knew existence until it, its after the death ques of Mr. Grafeman on 1917. December The first 21, presented requires tion is, therefore, whether the law authority conveyance by such for the the officers of a corporation complicated any of its It lands. is not question managing of the of the officers of a property ordinary to deal in with its incorporated, course of the business for which it was property acquired purposes was not for this for held principal of traffic, home; but was its its office; its abid place ing corporate purposes. all for Its use reached necessary corporate down and included incidents of all its functions. Its visible existence there, seems recognizing any follow if there rule that the conveyance require of lands should the authorization of corporation through body, governing its should not be vested the sole’discretion mere executive appointment body, officer created of that that rule apply should to this transaction. beyond question.
That there is such a rule all It Cyclopedia Corporations, stated Fletcher his “Independent vol. 3, sec. as follows:' statute, 290] Yol. v. Northwestern Dairy Co. only may, but authorize must, not of directors board mortgage. corporate Particular of- of a
the execution ordinarily, mortgage, without execute cannot, ficers directors.” being do the board of so to authorized expressed 155 Mo. has in Bank v. Bank, court, This interesting ap- That case is the same doctrine. plication Moran was the before us. John to the one Packing stockholder Moran and -sole except corporation, qualifying Company, for an Illinois He directors. of his four associate held each shares company fifty thousand dollars borrowed Joseph, Missouri, Bank, National St. State corporation, with a executed the notes which he pay- securing plant their in Missouri trust on its Chicago attached National Bank of ment. The Union Packing against property the Moran in a suit the same having Company re- itself, and, indebtedness to on an judgment, the deed trust sued to set aside covered among ground, action of the directors’ that the others, the meeting formally it was authorized was de- at which *16 purpose. for that insufficient fective, and plain- sustaining judgment for in the This a court, thoroughly setting in a considered deed, aside the tiff opinion by said: J., Bubgess, the deed of trust in final “A contention president question the of Moran, the made John capital company, packing the owner entire who was company, the valid without action stock of the position, support In this defendant of directors. of the App. upon Shoemaker, Nat. Bank. 68 Mo. relies v. Union upon ground predicated the the 592. That case is persons property of in involved who made sale litigation only stockholders and were the directors corporation, corporation, in were, fact, of there were four directors in the be- while case bar although they may John have been Moran, side together they, Moran, com- nominal stockholders posed authority without the directors, the board of right to made the deed of board he had no trust. 330 SUPREME OF COURT v. Northwestern Co. think that in not therefore case an do this. We meeting if of the board of direc- “Now directing Moran, tors John John conveyance Packing Company, to make the Moran had provisions in in Illinois accordance with the been held company, in instead the charter of this State, question no that it been there is but have valid. would cannot, But an instrument by under the such circumstances legally executed disclosed authority. this without record, such Lead & [Missouri M. Co. v. Reinhard, S. Paper Ptg. Mo. 219; Calumet Haskell v. Show Co., Co. 331.]” 144 Mo. gather we been
This, so far have able as the painstaking of counsel, excellent briefs as well as from a rather expresses fairly
examination for ourselves, by. the law State hitherto administered this already in court. It held Hill v. Hill Coal validity Mining by 119 Mo. that the Co., a contract corporation purchase for the of coal lands de- majority pended sanction of the directors acting meeting all at a were called which notice, majority and that no director be counted in could such purchase who was interested sale of the lands through corporation represented otherwise than meeting. at such The same doctrine was considered approved Mining Company Taylor, Mo. 1. interesting case last in that cited holds estopped deny validity may of a fully by majority executed contract made of its di- rectors while it was in embarrassed circumstances, aat meeting minority were not notified, sell payment land, consideration of full mine, of all knowledge purchaser, its debts. The without fail- give proper paid ure to notice the directors, all the *17 possession debts, mine, took of the continued to and. operate money spending large improve- in it, sums of knowledge corpora- ments, with full the all members of tion. 290]
Yol. Dairy Co. v. Northwestern Bank.
G-rafeman That case an excellent illustration of affords the corporation principle in an involved this. The is instru- capital hy aggregation created the ment State enterprises organized conducted for in may happen benefit of at the time to he stock- whoever safety hy established law. holders, under rules Its requires implies existence a control which stands place pos- in in the of and for the individual investors management session and fund. This control lies They corporation. are the in the directors or trustees. president appoint they other whom are officers corporation. may agents of the business While its corporate through conducted like con- them, acts, veyance required originate of its in lands, are Legislature recognized directory. will of the suggested acted when, this the form it acknowledgment corporations, of deeds it took trouble to insert a sworn statement of the signed or other chief officer that it “was and sealed in corporation behalf of said ... of its board of [R. 2188.] directors.” sec. S. While provision directory, simply this it is, con- terms, its clusively implies legislative was, fact conveyances corporate mind, element of all of land. corporation, through That board directors, may estopped deny- by equitable considerations ing its autorization, results from the fact that the board of respect, corporation. directors in this is, Although perfectly regu II. case is lar on its it is in the it face, admitted record that was not authorized evident that the until after the directors, is nothing majority of them knew about president. claiming death That no one possession it ever of the land under Equitable Estoppel. also admitted. That one of the remedies sought by simply in this suit. It is defendant bank plain money said that the was loaned to bank tiff this deed trust,
332 OF SUPREME COURT Bank. Northwestern Dairy Co. v. Grafeman denying estopped its valid- plaintiff from that the is and says, money. it returning is, The deed ity without including acknowl- its affidavit and fair on face, necessary things represents edgment, that all states by grantor validity and authorized done to its were implications statements if these —that by face, fair this has deceived are false bank upon guilty the de- one fall and the loss should ception. equitable happens the doctrine that it Thus of es- burden estoppel defense, as a is invoked upon tablishing it the bank. falls interposed de equitable estoppel cannot be That pleading legal recovery it, upon title without feat a long con State established this has been [Bray Marshall, v. of this line of court. decisions sistent 75 Mo. v. 235; 77 Mo. Chance Blount, v. 327; Noble 158 Jennings, Mo. Chartrand, v. 159 Mo. Sanders 544; Ry. 568; Avery 561, Mo. 113 Co., v. K. Southern C. 352; National Mo. Central 50, 60; 121 Throckmorton v. Pence, Hutchinson, v. 51; Mo. Cockrill 40, Bank v. 109 Doran, Railway Mo. Co., 207 135 Mo. Swinhart 67, 74; 428; Coleman 210 Mo. Edmonston, 438; Turner v. Company, 631.] Mo. 620, v. Insurance bank insists other the defendant hand, On the legal upon incident title, not a suit is chief enjoyed by plaintiff, possession, still which, is equitable right equity, it to assert but that to suit legal upon removed the court, have cloud title plaintiff consequently and that the burden is remedy equitable right equitable to the to establish its it only not the removal of a which includes cloud seeks, injunctive it but also relief. asserts, the title which complains plaintiff is the The cloud of charges only It not this instrument of trust. f o directors, unauthorized the board and therefore charges it consideration; it is without void, but also money never received other thing with it or the valuable in connection notes which purports charges to secure.' Should the first of these TEEM, 290] OCTOBEB Yol. Dairy Co. v. appear trial it made should established, board not authorized of trust was that the deed as between law void at was therefore
directors previous already in a said parties, as we have would, *19 prove plead upon plaintiff paragraph, tó devolve might in to assert equitable it desire as defense such pleading, legal derogation of so Instead title. of legal solely upon title stands of the'bank the answer acquired by the deed. if
Notwithstanding bank insists that this the ought it not, plaintiff evidence shown own has petition, it in its equity in to the relief demanded have though duty it it be to withhold even of the court is not pleaded inclined defense. We are an affirmative as examining agree proposition of to the extent to to the it or not to whether shows evidence ascertain equity, asserting estopped, from the invalidity in is already of we have the deed which of trust plaintiff’s want in is invalid for of said it. to execute as trust, III. deed secures, well the collateral April it It 19, 1917. was notes which dated acknowledged May 15, on filed was for record May officeof the Becorder Deeds the. of Estoppel. principal note, which these 25, Evidence were made to secure, collaterals was dated May Mr. the cashier of 17, 1917. Obernier, the defendant repeatedly bank, testified that the al trust had ready may been recorded when delivered to him, and we take true. it as mention these We dates' now we may inquire any have them in mind while we whether money, if so how the bank much, advanced on the of these collaterals.
, nothing There is the record tends to show twenty-four the amount of stock held stock- except beside Mr. Grafeman holders that Mr. Obernier, defendant cashier bank who acted for it in the par held one transaction, thousand dollars How- value. they may ever much little have been, were all en- COURT OF SUPREME Q-rafeman Dairy Northwestern Bank. Go. v. equally.to protection law extends which the titled already said, we have their investment. As over body constituted the visible directors hoard president, corporation. the auto- G-rafeman, withholding him from In crat directed its who activities. power conveyance without author- the ity to make a of land certainly withholds
of the board of the law directors, power ratify without him own deed made authority. corporation, whose such Who, then, is power who ends, continues when that of the officer may give life his ultra vires acts'? simply agreement adopt
Ratification authority, act one who without act assumed, has for another. of course, be made effective, To must, power having one to do act for himself. doWe doWe tire platitudes not understand these denied. understand the defendant bank to mean that Mr. Grafe- *20 capacities. man acted two in distinct As of corporation duly by to elected the office of board statutory directors, the deed executed virtue of his power; having but failed to obtain from the corporation validity, necessary to it was ineffectual conveyance. as a He virtue then, of his autocratic power corporation, over business, assumed to upon is capacity it what he has done in that the bank to rest seems its title. We do not understand to say that as the he ratified his void act as president. This involve an would obvious contradiction They say of receipt terms. that the and retention rathe.r money manager capacity of the in his as of the business corporation, estops deny to the validi- ty security upon procured. which it de- upon equitable estoppel, fense rests and it is to that doctrine that our attention must be directed. In De Lashmutt v. 261 Teetor, Mo. we 440, defined estoppel pais, equitable estoppel, in or as “that condition justice
in which speak that one forbids the truth in his own behalf.” We noticed with satisfaction that learning subject on this learning as is, should be, the 335 290] Yol. G-rafeman Co. v. “estoppel in quoting of Webster the definition all, a estoppel,” when “equitable “which,
pais,” as that or another language caused party or has his conduct state a certain reasonably in existence believe upon do) legal right act (having things, toso setting up, averring precludes or him from the belief, state prejudice that a different the latter, to the question.” things at the time existed in subject elaborate more L. the same In 10 R. C. represen person ly held to treated as follows: “A in position otherwise where assumed, tation made or a consequences equitable who, to another would result right having all the circumstances under do so of. good relied thereon.” Few faith, in case, has, frequent occasion to have had more American courts early principle this. In an Missouri than discuss equitable estoppel stated the elements case court estoppel pais it is said “To an constitute follows: first, 3 that there must be, in Dezell v. Odell, Hill, proposed the evidence an admission inconsistent with up; given, second, claim offered to be set an party admission; third, action the other such by allowing injury to to be dis him admission proved.” the fact The court also called attention to equitable estoppel old then as as the the doctrine of part Statute of and as law of the Frauds, such, [Taylor Zepp, many 482.] 14 It Mo. has land. v. though perhaps forms, different to the cases, same doctrine adhered present [Newman time. v.
down v. 207; Goddin, 229; 37 Mo. Mo. Hook, Bales Chouteau Perry, Stagg 449; v. Linnenfelser, Mo. 59 Mo. *21 Loring, Dooley, Mo. Acton v. 336; 19; Austn v. 63 74 Blodgett Perry, 69; 97 63, 273; Mo. v. Mo. Burke 263, 504, 514; Belden, v. Mo. Monks v. 80 Adams, 639, 80 Mo. Gentry Gentry, DeBerry v. 122 Mo. l. c. 642; 221; Ragsdale, v. 128 Bank v. Wheeler, 84; Mo. Mo. 171 Spence Renfro, v. 185; 417, 422; 179 Mo. Harrison v. McReynolds, McVoy, Keeney Mo. 533, 547; 183 v. 206 42, 57; Mo. Milan Bank Richmond, 74; v. 217 S. W. Mat- ' 'OF COURT SUPREME Northwestern Bank. Dairy Co. v.
Grafeman. Berry v. Massa l. c. 38; 221 S. Van Cleve, thews v. W. Doe Run Bonding In Re 748, 752; 221 W. chusetts S. Co., 609.] c. Lead S. W. l. Co., they extending, nearly do, In of these as cases, all thought history judicial State, of onr over the entire estoppel equitable founded prominent an cannot he is knowledge upon equally facts which are within estoppel parties. otherwise, intent both law "Were might easily in be made an instrument of fraud. equality parties touchstone has Loring, supra, we which it tested. Austin v. said: In injury damage, one no “If no has been misled if conduct, has arisen from the declarations or silence party, estopped contradicting he will not be them, party and a will not allowed to be avail himself of estoppel edge he knew or had the when same means knowl party.” Perry, supra, other In Bales v. we parties, said: truth “If, known to knowledge, therefore, both they equal if have means of or. there can estoppel.” Spence supra, no In v. Renfro, we said: “So parties, they if the facts be known both or if have equal ascertaining means of them, there can be es- no toppel.” expression In Re Doe supra, In Run Lead Co., the latest put
before we us, as follows: “In order good plea estoppel, to make allege necessary it is both ’’ prove has one been misled to his hurt. Gentry Gentry, supra, page In 221, the rule as stated Bigelow (5 Estoppel Ed.) page 570, was stated and approved language: following in the “First. There representation must have been a false or a concealment representation of material facts. Second. The must have knowledge, been made with actual or virtual, of the facts. party Third. The whom was made must have been ignorant, actually permissibly, of the truth of the matter. Fourth. It must have been made in party actual or virtual, that tention, the other should act upon party it. The other must have been induced Fifth. act it.” *22 337 290] Yol. Bank. v. Northwestern Dairy Go. G-rafeman conrt, 225 Mo. v. Mann, In Hector opinion in wrote also opinion who J., Lamm, another supra, McVoy, attention to Keeney directed v. might avail made quasi-estoppel, which called he defense judicial where arising sales, from to sustain titles able knowledge, accepted by price with the owner had been knowledge, equivalent circumstances all or the alleged infirmity. Mo. Louis, Troll v. St. In simple statement with the that ease referred was in “quasi-estoppel” not was the doctrine denominated again re conrt. It in the case before voked the statement Teetor, to in DeLashmutt ferred nothing line of cases nor in the in it, that there was estoppel ecraitable the doctrine of inconsistent with cites, simply in case holds “that it. It have here as we stated judicial party who, to the suit sales execution and edge rights, affecting take- the facts his with knowl of all coming price surplus purchase himto of the down validity, thereby theory rati of its from the sale on the proceeding part adopted.” so the extent of fies A cases in of all Missouri careful examination any in case is cited fails disclose the Hector-Mann application “qwasi-es- the doctrine of stance against judi receiving money arising one toirnel” knowledge, imputed, actual or without either cial sale invalidity. the fact of its app’Y principles to the for us these
It remains developed by plaintiff at the trial. facts and'simple. The visible facts few These are IV. begins, story had, before the existence person in the Grafeman. Like swallowed ud “elderly in Mr. naval man” Gilbert’s of Estoppel. Nancy Bell,” °f assimilated he.had Evidence tbp captain including crew, cook, Companv, several vears the Dairv there so management. been no such interference Under natural and almost inevitable that circumstances identity-^-as have arisen as to his doubt should 290 Mo.—22 OF SUPREME COURT v. Northwestern Co. simply given transaction, business in a
whether, *23 Company. Dairy or the Grafeman Grafeman, William year beginning examiner, bank of the the a About investigation bank, defendant of the affairs of the in his security for the have further it should advised paper. Grafeman suspicion cashier had the first the ever
Thus arose paper, expressed the soundness of the Grafeman toas obligations says although believed that the he he still Company good Dairy Mr. Grafeman’s with were the not us the He does inform of amount indorsement. or his to the bank of either the indebtedness Grafeman significant company from this hint when he received partic- although say does with cautious he examiner, bank May ularity foilr months that about afterward Dairy Company’s for note date of 17, 1917, personal to $45,000. amounted indebtedness his $50,000, Company’s in- $20,000 It admitted with to it after interview debtedness was advanced safely may assume on £hat we examiner, the bank so hint was. time this cashier, that, of the company in to bank indebted received, the indebted- This added'to Grafeman’s $30,000. amount of $75,000. total of ness made a calling suggestion Upon examiner the bank busy. security, got It de- the defendant further security, only statement, but a additional not manded mortgage, promised promptly and also this G-rafeman public employ accountant,” “certified Kessler, Mr. pending required. additional to make statement duty pertaining security to the matter seemed be a up in with Grafeman took it he cashier; per- obtaining February. statement matter of “note clerk” of duty Foote, of Mr. to the tained up em- who was Kessler, took it with bank, purpose. Trouble soon ployed Grafeman The certified ac- of this both branches work. arose course of his ascertained, Mr. Kessler, countant, reported, in- that Grafeman examination, so 290] Yol. v. Northwestern Bank. Dairy Co.
Grrafeman corporation on account various sums debted to Northwestern Bank him from the and un- withdrawn which, $68,662.28, with other for, sum accounted arising the bank made total transaction, sums deficiency This amount Mr. Kess- was, of $82,695.22. charged Mr. Grafeman, consultation ler, objection personal latter without account from him. February, promised, in Mr.
When give mortgage by way to the- of collaterial undertaking not he assumed Bank, difficulty. entirely before the Five six weeks without put up mortgage he the matter final execution of the his board of directors and member Mannebach, *24 company. secretary refused Mannebach to take of the part persisted in his refusal until in its execution. He 'persuaded go to with him to Mr. him the Grafeman Aiple when Mr. Hemmelman, officeof Hemmelman, and great persuaded confidence, he seemed to have whom right to attest the him it would accordingly all for him deed, that cashier, Mr. the Obernier, which he did. to him Mr. would have exhibit told Grafeman he copy of directors a of the resolution of the board and authorizing the of of the and stockholders, trust, deed or the six weeks of it natural that five effort was after expended Mr. he has on his Mannebach, brother-in-law approaching about others on careful should subject, and the record shows he refrained the same says doing Mr. he asked him from so. Obernier produce records, he never did but so, time to time to person that no other it be conceded con seems to transaction of the ever un nected with board knew death. While til Grafeman’s Mr. after William security, urging for the Grafe Obernier was Grafeman perhaps equal persistence with better man with was money. urging The collateral success, for more Obernier signed, papers, including were acknowl of trust, the deed edged prepared April 19, for on but Grafe- record tenacity clung man much that the still with so them OP MISSOURI, SUPREME COURT Dairy Oo. v. Northwestern Bank. day. another $10,000 advanced Mm on next bank given retaining longer excuse was still the them What might It have been not mentioned. is cashier incorporate in desired the file which contained them may coveted or it record the board directors, ready pay price, not be that bank was but may delay whatever have been the cause of the ad- May $10,000 ditional was and after advanced delay eight days, further deed trust de- receipt livered, with a on the 25th. recorder, testimony of Mr. under Obernier, While cross- may examination of his have bank, shown some indica- uncertainty, weakening nothing tion of there positive story casts doubt direct and of his copy demands of the resolution of the board of Company authorizing directors through That trust. its bank, cashier, knew accomplished could not be and that it certain, de- liberately get purposely what took it could way security open during is not doubt. That elapsed three four months that after was ad- monished bank tried best to examiner, law- fully required appears every obtain the line testimony. ap- of his That the afraid to proach who his relatives constituted his direc- board exception paid tors one to whom he salary appears years, plainly for twelve or fourteen *25 by testimony. the That Mr. G-rafeman was able to take advantage squeeze of the banker to from him the last by dangling eyes hope before the $20,000 his the might deed of trust save its is the investment, most curious the feature of transaction.
Not a- cent seems have advanced on the given security of It this deed. was what to save was at an old indebtedness; $30,000 best of the amount had, originally, no connection with the transaction. The re April mainder of on 20, $10,000 of same May simply capture amount on were the bait used . larger for the amount There no reason 290] Yol. .1921.
Grafeman Co. v. Northwestern Bank. why any precedence other in- take over should shown corporation. debtedness opinion, reading from an
In formed attentive onr testimony not trial and afterward admitted at deed the notes of trust note excluded, represented personal given in as collateral, suit were Mr. connection whatever debt of and had no Grafeman company. with Mr. Kessler em- the business of was ployed purpose to examine the books of the showing making a balance assets sheet these same liabilities connection used securities. He had access to all books and accounts upon question, bearing the bank and Mr. Foote, represented Mr. bank. state- Kessler’s clerk, note gathered these ment what he saw and from sources evidently it fails to admissible, of information but was upon have said, sustain the burden we rests which, estoppel. The the defendant to sustain the void prove upon that Mr. the trial Grafe- offered to accepted against charges him in settle- man made ment. The statement made was. the demand completed although until not defendant it was and, bank, part of the same after the execution of the deed, was transaction.
' Dairy Company did not show V. The books part fifty dollars included thousand May com note of been received had 17, 1917, pany The book and vouchers from the bank. Admissions. Mr. showed the bank checks and other on vouchers of bank drawn charged company not him the books $68,662.28 arising company, total indebtedness and that his of the out of with the Northwestern Bank transaction charged him all of which was $82,695.22, suggestion with his at consent. This Kessler finally respon testimony excluded the court properly This action was instance. saved and is dent’s assigned for error. *26 OP COURT SUPREME Northwestern Bank. Dairy Co. v.
G-rafemail proceeds of if evidence, true, This shows president. Whether it loan absorbed this were pre-existing pay Com- his debt used to was pany through known to the bank material. The were is not facts perfectly they as and Mr. Foote as Obernier himself. known to Mr. were Grafeman corporation, question for whether the whom The is may including may honest creditors it it such concern, benefit of the same infor- have, is entitled to the now mation. by and his admission offered dead, Grafeman plaintiff purpose. for Is admissible? object is to cancel a deed suit made corporation, in the name of his payment corporation. secure the of a certain note of the appeared the trial it that the On deed is void at law corporation want of from to its question presented it. to make then whether ought granting to be amade condition to the equitable plaintiff, repay relief asked that it money upon security, it ground was said have received on the plaintiff estopped equity deny sufficiency retaining deed while its benefits. ground It was that the admissions Grafe tending corporation man to show that the had received money, no but that the entire consideration of the deed went pertinent to him, became Being the issue. dead the evidence of his at or admission soon after the time of the transaction became the best evidence of knowl edge of the fact. petition
Had the general admitted authority of Grafeman to borrow $50,000 from the bank conveyance question and to execute the to secure its repayment, alleged but had the amount or some portion personal of it consisted of a debt of Grafeman to the bank, which had derived no all of which benefit, the bank well knew the time, and accounting had asked for an' and settlement se- curity on that basis, there can be no doubt that Grafeman proper party would have plaintiff’s to the issue, at 290] Yol. *27 Dairy
G-rafeman v. Co. extent of in to the party interest well as election, as liability So the transaction. included in to bank his his interest is concerned, this case is far the issne in as duty upon question his precisely stands the same. The through directly pay debt the bank either to Dairy to b^ Company. In the cost to him will either case he is liable His so stands admission the same. upon pro party ground to if he as were a the same ceeding, of the consideration its exclusion from and [Wynn Cory, 346; Mo. Stewart v. court was error. Boyd, App. 412.] 92 Mo. v. Glenn, 481; 58 Mo. Obuchon Recapitulating, of trust in we hold that the deed plaintiff having made of suit, authority in- is directors, board of from its without giving purpose operative of to de- void for any priority other creditors over as fendant’bank existing, or created at theretofore indebtedness knowledge part on the such bank of time with through authority. bank, of That defendant want authority of knew of such want its well cashier, the deed of trust. That while it nec- time it received estoppel plead equitable essary when it is relied equity, yet or in either at defense, as a law suits equitable plaintiff relief, when the shows own evi- equity estopped demanding it is from dence that such granted, estoppel not be whether the relief, will pleaded by answer or not. defendant in its any showing -is case made far preference giving equitable ground this indebtedness plaintiff. other indebtedness of over The most long past before this due was ever thqt suggests strongly suggested, and the evidence the the purpose procuring created for the remainder was regardless of trust from the deed execute board to present it. The in the condition evidence, of strongly also tends case, show the deed of trust given arrangement under an received between the bank to Mr. Grafeman and secure the indebtedness former not the indebtedness of the Com- pany. OF SUPREME COURT, Railways Co.
Laycoek v. United carefully, upon the case tried its While the defendant theory was sufficient trust issue legal int not think the convey do land, title we justice trial of the real from a full will suffer erest issue as accordingly reverse the it. We have stated
we City judgment Louis, for the St. the Circuit Court Ragland purpose. for that remand the cause concur. Small, CC., foregoing opinion PER CURIAM:—The Brown, opinion adopted of the court.
C., T. James *28 E. Blair, Graves, C. and Blair and J., Walker, David JJ., J., concur; Elder, result; Woodson, concurs J., Higbee, reversing judgment concurs dissents; J., opinion remanding judg but cause, and appellant should be directed. ment for A. LAYCOCK v. UNITED RAILWAYS JOSEPHUS Appellant. OF LOUIS, COMPANY ST. Banc, In November 1921. Irregular Passenger: NEGLIGENCE: Movement Street
1. Car: Pleading. irregularity There is more or less in the of all movement negligence is -not part cars which due electrical of those plaintiff them, safely upon where' operating and the ear as a injured getting was not while passenger, leaving and on or it, but thereon, must, riding petition order that while may state a allege prove jerk action, cause of the ear which injury unusual in his was an or extraordinary resulted movement. Breaking -: ——.—: Jerks: Crowded Car: Window. An al- legation that defendant moved a crowded electric street car with unexpected jerk with a sudden and such force as to throw another passenger against glass of door, the entrance breaking glass causing pieces broken eyes strike in his greatly face, injuring him, is, in substance effect, an al- legation showing -of facts extraordinary and unusual move- ment the car, is, verdict, after sufficient statement cause action. . notes Mo.] Dairy Co. v. Northwestern Bank. G-rafeman
Notes
notes of said sale SUPREME COURT OP Co. purported plaintiff said trust is not restrained, irreparable injury; plaintiff will suffer and that has no adequate remedy premises.” at law in the preliminary injunction upon The court awarded a prayer petition. these statements and the The defendant'bank filed answer, which all the issues stand. It made the conventional admissions corporate parties, acquisition to the as and character ownership securing of the notes deed of trust proceedings them, the taken for and denied foreclosure, allegations. all other By way April counterclaim stated that on occupied owned in fee used