Guthrie v. Waite, 129 Mo. App. 587

Guthrie v. Waite

129 Mo. App. 587 | Mo. Ct. App. | 1908

BROADDUS, P. J.

This is a proceeding by inter-plea. The facts are as follows: The Velvet Mining Company is a corporation organized for mining purposes. The respondent Louisa W. Guthrie was a stockholder in said company, and her husband O. B. Guthrie is and was its secretary, treasurer and general manager. In February, 1906, the company had been sued in a justice of peace court in unlawful detainer for the possession of its lease and damages in the sum of $2,000. Judgment was rendered against the company and the said O’. B. Guthrie employed the appellants Mclndoe & Thurman, attorneys at law, to appeal the case. The company gave an appeal bond but was required for some reason, which is immaterial, to give a new bond when the case reached the circuit court. The appellants wrote a letter to Guthrie, the manager, notifying him of what was necessary to be done. A. H. Waite, who became the surety, required the company to indemnify him as such against loss. Guthrie sent to *591appellants a draft for $2,000 which was issued by the Franklin Bank payable to the said company, and indorsed to appellants who in turn indorsed and delivered the same to said Wait the surety on the appeal bond. The latter gave a receipt to appellants which recited that when the liability was ended the funds realized from the draft should be returned to them. At that time neither they nor Waite had any knowledge of Mrs. Guthrie or that she had any relation whatever with the company or that she had any claim to the draft or the funds. The suit in unlawful detainer terminated in favor of the company.

Afterwards in November, 1906, the appellants upon hearing that the company had undertaken to withdraw said funds in the hands of Waite began an attachment proceeding in the circuit court against the company, and caused Waite to be summoned as garnishee. The company defended the suit and filed a plea in abatement. On the trial the attachment was sustained. During the trial Mrs. Guthrie was in attendance and assisted in the defense of the case, but she filed no interplea. However, on December 24, 1906, while the attachment was pending she commenced suit against Waite claiming the funds. Waite filed an answer in the attachment suit in which he disclaimed having any interest in the money in his hands and deposited the same with the court and further answering that appellants and Mrs. Guthrie claimed the said money, and he asked that they be compelled to interplead. The court made an order that the parties file an interplea Avith which order they complied.

Mrs. Guthrie had money in bank against which she drew said check payable to the company for the sum of $2,200. O. B. Guthrie her husband and general manager of the company cashed said check and obtained the draft mentioned which he forwarded to appellants.

The theory of the appellants is that Mrs. Guthrie *592in giving her check as stated transferred the title to the money to the company; and that upon this fund they obtained a loan by reason of their attachment. In support of this theory they cited the following cases: Lewis v. International Bank, 13 Mo. App. 202; Morrison v. McCartney, 30 Mo. 183; Chouteau v. Rowse, 56 Mo. 65; McGrade v. German Saving Institution, 4 Mo. App. 330. These cases have no application whatever as they relate to the law merchant and to the rights of parties under negotiable instruments, whereas this is a case of bailment for a special purpose. The means by which the money of Mrs. Guthrie got into the hands of Waite the surety, did not operate to divest her of her ownership any more than if the bailment had been a horse or any other species of personal property. The check and draft were only the means resorted to by which the money of Mrs. Guthrie was deposited in the hands of Waite for a specific purpose and did not operate to vest title to it in the company, and the purpose of the bailment having been accomplished the said Waite nor any one else had any claim to it. The company had no right to appropriate the draft to its own purpose except as the indemnity to Waite. The latter now disclaims any interest in it whatever. The company having no right to said fund the appellants obtained none by reason of their attachment. For the reasons given the cause is affirmed.

All concur.