*1 Cоmpany merely depository, the board had selected certain as- thereupon, Company thereof, Indemnity and because sumed, that the authority depository, board had to select such that thereby, treasurer, bond, be re- principal would through lieved from de- liability for of. the funds lost the failure pository.
We have cited, considered the Town v. School cases of Montevallo District, 268 217; Telephone Mo. Ex Mountain v. Farmers View change, 623; 294 Mo. Co., of Cole v. 302 Mo. Trust other dealing' eases question or estoppel municipal of of a quasi-municipal corporation. estoppel applied, The doctrine of but is with caution, only clearly demanding under circumstances application prevent injustice. manifest The circumstances of case do application not demand purpose of the doctrine. The the terms of the bond were accounting to insure payment an coming the funds of the district into the hands its treasurer. The compensation for making paid by the bond was the district. In demnity Company dealing agents with the officers and district were bound constructive notice law and of the public records district, made the officers as the measure authority. of their C. J. 1193.] [21 judgment
Under we have conclusions reached is affirmed. Ellison, CC., Seddon and concur. adopted PER opinion foregoing C., CURIAM: The LiNDSAY, opinion judges
as the All of concur. court. C. Appellant, Estate Trustee A. Mann, Frank Ready, John v. Commissioner and S. L. Cantley, Greenfield, (2d) Finance. 20 S. W. 502. Two,
Division 1929. October *3 George W. & appellant. Goad Mann Mann for McReynolds Thos. W. Martin respondents. and Allen *4 petition on a DAVIS, is an action contract. com C. This hypothesizes theory that prises counts, four each the Dade and County knowingly wrongfully appropriated and and used therefor, of a trust estate without the assets consideration and that Bank, County liquidation, entered thereafter into defendant, with defendant wherein consideration contract assets, agreed pay, transfer to of certain assumed and County except capital surplus, stock of said Dade liabilities juryA At the Bank. was waived. close all the evidence trial gave count, that, as to to the declarations of law each effect court plaintiff was not entitled to recover. It pleadings,' under also knowledge of Van Osdell gave a declaration of law that notice or testamentary (cashier of said Dade trustee of said knowledge estate) did notice bank. constitute or to said judgment defendant, plaintiff The trial rendered for court then appealed. finding that John A. developed facts warrant leaving Edwin Harrison appointing in 1911 a will died or
Beads7' Q. Floyd appoint They thereof. also Osdell executors administered, finally Beady’s The estate ed trustees of estate. May 21, 1913. charge trustees took such assets as resрectively, the cashier time, Harrison and Van were at that Osdell resigned Bank. Harrison assistant cashier of the Dade *5 the 1918, in severed his connection and, as cashier in Osdell was elected In 'Van bank and moved to Oklahoma. Beady’s of a trustee Harrison cashier of said bank. While remained removal, trustee in in the active estate even after Osdell fact was Van resigna 1918 until his management. from Osdell addition, In Van December, only tion was tbe active operating and officer County of the Dade Bank. one However, Grether was in the bank as assistant cashier. The assets received the Ready trustees the estate to not $22,000, amounted less than and comprised were of notes mortgages. secured first appears County
It the Dade in 1918 financially was troubled. A client of said was the Greenfield Electric Company. Its officers were and directors officers and directors the bank. It to was $12,000 indebted the bank in sum of the or more. earn- Its ings aggregated month, operating $500 or $600 a but its expenses were earnings. in excess of its It unable to was reduce its indebtedness bgnk. to the objected The bank credit, examiner tо line of and this insisted the directors notes. indorse its It also had an overdraft in the bank for $500, gave for it the note. which bank its Van Osdell 12, 1918, May 1, 1919, light June and respectively, to the decrease company’s and to care indebtedness take of the drew overdraft, payable County checks on and the $2500 $500 to Bank for and on the Ready estate, account the and lieu thereof substituted placed and Ready the as assets of estate two the unsecured notes light buildings company $500, respectively. $2500 for and light the company burned without insurance. Later of its a sale remaining property sale, 'arranged, and, in order was to effect a placed these Ready two notes delivered the the estate were to purchaser without Ready money consideration to estate. light received from applied sale to'the indebtedness company to the Dade Bank.
On February 13, 1919, Bank held the note Johnson, Osdell, $1500, a brother-in-law of Van secured for mortgage aekowledged, chattel stock, on live which was neither old, recorded filed note, nor for record. The about six months obligations Johnson, other objected were to bank examiner pressure the bank directors. Van day, Osdell, On said due stock, the fact that Johnson had live transferred sold the Ready estate, paid bank, Johnson note out Ready cash, in- estate, $1543.74, funds of the sum of note principal However, cluded Johnson and accrued interest. drawing mortgage spoliated and chattel and altered lines thereof, through payee’s name, by inserting in lieu payee, on, however, John Estate. Later this note Ready A. transaction, Decker returned to the what as the bank in is known anything of summarized, Reаdy later estate giving without value Greenfield therefor, Osdell transferred from the Cemetery treasurer, and took Association, of which he equal funds of the an amount association, benefit to the face value of the note. *6 County Dade Decker indebted to the
September one un- $15,000, partly of secured partly Bank in the sum about and slightly of Decker owned a farm more than ñve hundred secured. In addition to Decker’s acres, situated in and Cedar counties. mortgage a bank, to the estate held on indebtedness a ’Read}'- portion $4,000 portions of to secure his note. On other the farm $3173, mоrtgages, aggregated of of the farm three two which were years’ Decker the amount of the other was not shown. owed two but land, years’ County three on the Cedar taxes on the taxes only to Decker not behind on his interest as these County land. years’ but on the Dade loans, two interest his indebtedness to constantly had accumulated. Hds indebtedness the bank was increasing. of financial condition and his indebtedness On account Banking bank, president directors, to the as well as the State objected Department, seriously continuation loans. to a of these obtaining, bank, Osdell, With Yan as cashier of the this situation one $15,000 note for called Decker in and had him execute a Grether, on cashier of deed of trust assistant secured a together forty-acre Decker, belonging tract to Mrs. a farm, subject noted part farm, encumbrances above. of same note, knowl- forged Yan Osdell Grether’s indorsement to the without $15,000 note of edge Grether, placed this and deed trust of among estate, took from Ready of the and in lieu thereof the assets Ready $13,242.26, of the estate solvent value secured *7 Greenfield, hereinafter defendant, organized. called The Dade County Bank defendant, and on 30, June 1924, into entered contract, by witnessed State bank The examiner. portions material of the provided, contract in substance, that, consideration of assumption agreement defendant’s and to pay all of capital its liabilities, except stock surplus, County and the Dade Bank sold to defendant its assets, except the notes described in “Schedule A,” aggregating $‘91,789.17,attached of part and made a the con- tract. The assets sold by were be shоwn of the books the Dade County Bank at close 28, of on the business June 1924. The Dade guaranteed Bank County that its books showed the true condition of liabilities, books, assets and accounts, its and that all balances County and items both other of assets and liabilities of said Dade of Bank, shown at the business the books of said bank close 1924, conditions of on June taken over under the terms and and contract, were to discrepancies this and either way are correct. Errors and respective parties, the and reimbursement inure to the benefit value of aggregate the the payment provided. were face County the defendant assets and notes transferred Dade $93,321.33. totaled defendant, that, if to show for defendant tends evidence contemplated or negotiators contract, known officers and of the liad Dade by the boobs of the as shown that other than those liabilities against it, the defend- County 28, 1924, Batik on June were in force contract; or ant into would have entered executed assumed that defendant parties was understood contract County Dade books of the only such indebtednеss as was shown 28, 1924, claims at of business on June close liabilities. sued on not shown on of said the books Ready estate in appointed Plaintiff was successor trustee November, spring 1923. return- This suit filed in County, able to term of the Circuit. Court June Circuit Court May term, 1926, County tried at the in the Lawrence between the contract change on venue. At the time was executed defendant, the hands the former was Bank and representatives participated of the Finance Commissioner negotiations consummating the contract and were active approved suit, it. the fоrmer trustees Prior to the institution of Osdell, Ready filed settlement estate, Harrison Van a final Í0Ó8 Ready, their accounts as trustees to which plaintiff excep- filed
tions, on the judgment against and a trial issues raised resulted in a Osdell in sum $23,652.23. Harrison and Van Thereafter, plain- in the Circuit Court of Dade against instituted two actions tiff Osdell, Harrison and respectively, bondsmen of in which sought judgment to recover from them the $23,652.23, it was against entered Harrison and Van Osdell exceptions on the to their facts, relating respective final settlement. issues, Other will opinion. be recited in the
I. At threshоld, pursuant general entry to a of appearance prayer party defendant, he be made a we are met with a motion of the Finance Commissioner of Missouri that this case According
str^c^en Nom the docket and dismissed. to an affidavit filed motion, commissioner with the charge of he took the assets of posted the defendant and a notice January 12, door of the bank 1929. on the front The record in *8 plaintiff this shows that filed in cause his action the Circuit Court term, 1925, and, change returnable to the June on of venue, May 19, 1926, heard on 18 Circuit cause was judgment Court of Lawrence for County, where was rendered defend 1926, 2, plaintiff appeal ant bank. On June allowed to this an court.
The motion of the Commissioner is Finance based Section 11,700, 1919, page Revised 212. 1927, Statutes as amended Laws pertinent 3) The portion (Subsec. reads: private subject airy corporation “Whenever or banker to the provisions desires, may chapter place this or he or his so it its affairs and of the bank commissioner assets under the control posting (or trust a notice on front door follows: ‘This bank company) posting is in the commissioner.’ The hands the bank this notice or of a notice the bank commissioner that he has taken possession any corporation private such or bank shall be sufficient place nature, posses- to property, all its assets and whatever any operate bank to commissioner, sion and shall as a bar any proceedings equity, against or in in- whatever whether law corporated bank, bank, private company, assets, its or or or their any proceedings shall be begun, and if such action is then all such upon summarily naught held, dismissеd and the certificate of being showing cause, bank he commissioner filed in such that has possession banker, of the of such or trust com- taken assets pany, any proceedings pending in which such are shall court jurisdiction proceed any have no power, authority, further or such cause.”
Í0Ó9 will It be summary noted from a of tlie record herein that suit judgment filed, was rendered and entered for defendant, and plaintiff allowed appeal to prior an this court to the taking charge of the affairs and assets defendant the Finance Commis sioner. Pursuant premises to the developed, thus he that moves this case be stricken from the docket dismissed. No doubt can obtain but that at plaintiff the time filed suit in the circuit court, that court jurisdiction had corporate of the person of the Bank of Greenfield, jurisdiction as well subject-matter. of the It is general rule that, where a acquires rightfully jurisdiction court of a cause, it has right to retain [Morgan and decide. 2 it Morgan, v. 290; Wheat. In re Chatwood, 443, l. 165 U. S. c. 460; ex rel. State v. Holtcamp, Mo. 347, S. W. jurisdiction If the of the circuit court 1007.] jurisdiction and the of this ousted, court is to be it results from subsequent plaintiff oceui'rence of a event, over which had no control; and once jurisdiction, acquired, is not be defeated subsequent events. only ap C. J. This court has [15 824.] pellate jurisdiction. docket To strike from the and dismiss ease unimpeached judgment it would leave the of the circuit court and un right ques deprive plaintiff impeachable, and to have the thus determined. motion strike in the below tion of error court overruled. from the docket and dismiss case the law declared gave instruction trial an II. court knowledge as cashier of Van Osdell о£ notice or be that knowledge bank. said notice or did constitute County Bank did not court determined Notwithstanding the trial instruc in view of the think, action, we have cause an upon decided mentioned, cause tion develops theory. The evidence incorrect *9 the with of the Dade dealing cashier his as in Osdell, as the bank, well as of said representative sole estate, was the 'Ready Van Morover, Ready estate. of the representative and sole trustee repre dealings as and his benefit, for his acts no direct received Osdell of the in behalf were Ready estate the with of the bank sentative words, the was it In other use. benefit inured to its bank and although capacity, personal Osdell in Van not Bank, Dade con executed bank, of said representative as lie officiated evi the Manifestly Ready estate. the with the contract summated representative sole acting the he was develop, for tends to dence transactions, that the particular these in County Dade of the facts The bank. knowledge said of the was knowledge of Van 0!sdell acts” Osdell’s Van development herein, view the in of 1010
directly of behalf the bank and not in directly interest, in his own greater if case, anything, of do cogency establish a than in the facts 316 McCallister, Mo. 814. Manifestly, Bartlett v. S. W. rule, then, supported enunciated in the Bartlett by the case and the weight “that authority, to-wit, knowledge of of the the officer is knowledge although corporation, dealing of the he is with such in if corporation interest, his own such officer the is at same time managing corporation, officer of the representative and acts as sole corporation pаrticular of in the transaction,” embraces developed relevant to the herein. facts Nat. Bank v. [Merchants’ 114 Mo. Lovitt, given S. W. The instruction constituted 825.] error.
III. will Beady, which creates the trust estate which Van testamentary Osdell was trustee, provides, in substance, the trustees were to upon continue loans real made estate
^y ^ea-dy lifetime, long in so the interest bis was promptly paid, money coming to and that all estate be reloaned estate or in real on real invested estate Missouri, being given County, preference Dade security in to loans basis, exceeding conservative one-half the value on farms thereof. loaning
We think is evident Van Osdell his trust in than violated money of the trust in contravention the terms of the estate will, through knowledge County Bank, and that the of Van > Osdell, representative transactions, its cashier and sole charged Osdell, acting violations. Van notice of the trust exchanged Beady estate, transaction for both the and the by note of value, mortgage, doubtful chattel owned secured bank, for notes, trust, solvent first owned secured deed Beady $2500, He paid estate. also the bank for a note an $500, of the company overdraft out of the funds an electric Beady estate, and estate note of the delivered to said the unsecured electric company, practically which then insolvent and notes worthless. In addition, Osdell took notes and Van solvent secured Beady cash $15,000, owned value of and delivered estate, discharge them to bank, which an indebtedness of used them one paid. to the bank, returning Decker to Decker his notes marked In lieu appropriated through cash, notes and Osdell, $15,000, had Decker a deed execute secured *10 bank though knew a deed Decker, that the even secured notes of develop farm, trust on the These facts were doubtful value. knowledge part on his trust Van Osdell and violations of the he trust, the that bank, the for whose benefit Van Osdell violated wrongfully appropriated it. had bank violated It follows that the be property knowingly permitted the an trust funds estate and unlawfully Moreover, *11 and plaintiff negligent estopped.
is This based on the conduct develops that asserting in The evidence laches the claim. On January 31, 1924. County Bank failed on the Dadе in bank examiner 8, February 1924, plaintiff wrote to certify not County Bank that he could charge of the Dade had estate bank; against said that he no other had claims that day, the next in course. On presented be cine claims which will other returning him a claim plaintiff to was examiner wrote that he he return, as sign and him to balance, which he desired $8.67 for regard account; in to complete to wished his certification him very glad to have plaintiff would might have, claims he be other in the might assistance regarding same, him he be some write as the examiner with 1924, plaintiff wrotе February 13, matter. On the Dade respect declared $500 to a claim for a dividend pay bank to paid applied by to Van Osdell Ready estate, Osdell, a Van ment of note made trustee County Bank; claim, to preferred the Dade that constituted a contemplated plaintiff state; was not able there claim that was transaction; plaintiff also had not respect to the Decker bondsmen, determined whether loss to demand the from Osdell’s possession against bank; all or file a claim that he is facts; appreciates position, that he and his rea the examiner’s desiring possible, for soon as sons information about the will keep that, him contends advised. In this connection defendant (Sec. plaintiff statutory months period since allowed the of four 1919) R. 11716, pass filing S. claim with the commis without sioner, defendant, upon contract, the execution of the could well plaintiff against assume County Bank, no had claim the Dade plaintiff’s conduct, and that adduced, in view the evidence estoppel, permitted tantamount to an as he stood mute and defendant duty speak. to enter into the сontract when it was his The evidence show that did not tends to he know until some time after its execution that defendant had entered into contract with plaintiff’s the Dade Bank. It is clear that silence ivas not estoppel. tantamount do Nor we think .to promptly against failure to charge take action the commissioner in of the Dade County estops him. reason, For one the evidence tends show possession that he was not in of sufficient information to determine his course action. nothing We observe in the evidence that tends to show purposely that he carelessly or misled defendant.
Section provides Revised Statutes substance, that, when the possession commissioner shall have taken and shall have affairs, liquidate, determined to notify he persons shall who banker, may against have claims corporation, such or present proper proof ilie to him same and make within four months notice, thereof from the date of said at a place specified therein, shall specify in said notice the last date for presenting proofs. said The notice shall both by be mail to known by newspaper creditors and publication. No evidence offered statutory that the notice given. Plaintiff stated that he did not receive a notice and given. understood that notices were not The four designated months filing is, the statute for claims *12 effect, special and, statute limitation, in order to statute run, requirements strictly. must be It is followed evident that give commissioner did notices, not and consequently plain- tiff’s duty claims upon barred. The rested defendant ascertain that complied with, statute had been as well as to investigate the against еxistence of claims Bank, the Dade executing before plaintiff’s the contract. Therefore failure to file a claim with estop the commissioner did not him.
VI. Defendant plaintiff, excepting maintains that in to the trus settlement, ’s tee judgment wherein a him on awarded settlement was for over $23,000, filing against and the actions bondsmen of trustee, remedies,
^ie made his is a election against bar to an action defendant. The doctrine only applies election of remedies to those remedies anything which are inconsistent. We to see inconsistent are unable in that, misappropriation actions failure effect, involve the to hand in the funds, pursuit over of such trust funds trust receiving only parties However, hands of them. one full satis any, are suits, if may payments the other faction be had. Partial misappropriated. credited, if funds they be involve the same 560, App. 208 Ripley County Bank, Mo. & Ins. Bond. Co. v. [Mass. 323, App. 182; Reynolds 198 Mo. Bank, 237 S. W. v. Union Station 537, 128 W. 711; App. 143 Mo. S. Murphy, 200 S. W. v. Steinbach 207; Bank, 686; S. 20 C. J. v. 103 U. City Milwaukee Nat. Bank 10; 9, Co., 263 S. Strong v. W. Mo. Lincoln Trust 1038.] elapsed says
VII. finally that, years more than five Defendant misappropriation between the of the trust estatе the funds Van Limi- present Osdell plaintiff, and the action the Statute bf
Nation run. It is that the Statute manifest has in favor of the trustee of Limitation does not run repudiated express an until is trust trust conveyed que repudiation is to the cestui trust. knowledge knowledge representative, as its Through Osdell sole Bank breached Ms trust. It is knew that Van Osdell 309, 1 Seton, Pet. l. c. “It 299, v. is a well- in Mechanics’ said coming equity, persons possession into settled rule in trustees, considered property, shall be trust, notice with 1014
bound, respect spebial the execution of the property, knowledge trust, trust.” With Van Osdell brеached the Dade C'ounty participant breach of trust. became partic- Limitation be invoked defense of Statute of cannot himself. ipant any more the trustee in a breach of trust than 63 983, 86 38 Am. Bank, 400, Atl. Nat. Mechanics’ Md. v. [Duckett Trusts 958-9; Perry 2 84; R. 17 R. L. Rep. 513, St. 39 L. A. C. 861; 112, 250 Mo. (17 Ed.) 828, 859, Goodman, v. pars. 832, 840, Case 356; Co., Mo. 139 S. W. 698; Elliott S. W. v. Machine 217 W. 280 Mo. S. Sipes, Case v. 306.] cause remanded to judgment VIII. The reversed and the to, peti- amend his circuit court with directions to allow the try tion, advised, he and to the cause anew if is so or, if conformity expressed, herein to the views petition, to amend his plaintiff is not advised Henwood, CC., concur. Cooley, judgment render for defendant. adopted C., is Davis, opinion foregoing PER CURIAM: The *13 judges concur. All opinion of the court. v. Under Will of William McMillan, Trustee Bixby, William K. Company Trust ; et al. St. Louis Union St. Louis Union Trust Northrup McMillan, Will William Company, Executor Appellant. v. McMillan, Will Bixby, William
William K. Under Trustee Company McMillan, ; Lucie et al. Union Louis Trust St. (2d) 813. Appellant. S. W. Two, 4, 1920.
Division October notes (except $1605), $1757.79 Johnson note for trust deeds of County Bank, to the Dade cash, delivered notes and cash these held face to Decker notes and surrendered value portion A Decker farm $15,000. prior deed of on $1410.51, foreclosed, Osdell redeemed it for was later and Yan Ready by giving a estate he raised note to the Dade thereto trustee. Van Osdell took Bank, forging name Harrison’s portion by quitclaim name deed. deed title to in his The Osdell, took foreclosed Yan who trust on Decker farm was Only however, prior title deeds of trust. name, subject, in his farm was fifty of the five hundred-acre about hundred and acres one hilly cultivation; of the farm was fit for and the remainder time brush, capable being pasture. but used for At the it was improvemеnts bad state appointed trustee, the land had washed. repair, were down and tillable the fences equal the encumbrances on it. The farm then did value substance, Ready provided, trustees will of John A. by Ready in his upon made were to all loans real estate continue lifetime, promptly paid, so and that long the interest was coming estate, or in- moneys reloaned on real the trust estate be vested in real security estate County, in Dade Missouri, preference being given to Joans very farms on a basis, conservative not exceed- ing оne-half tlie value thereof. Dade County on January 31, failed 1924, and was taken charge the Finance Commissioner. Thereafter, Bank of
Notes
notes (cid:127) partly trust on a farm, partly five-hundred-acre counties, Cedar subject first trust. farm deeds
notes
purpose.
from
as the
diverted
their trust
Ready
probably
value and
delivered to the
were of doubtful
estate
worthless,
property,
obtained
appropriating
the
the estate’s
adequate
least, and,
same
bank
at
the
without
consideration
cognizant
it
breach
breach,
the trust
became a
the
participant
ing of the
ex
It is
that
the
trust and a
manifest
trustee
maleficio.
a trust
property
bank became
appropriated by
of said estate
the
impressed
Ready
fund
with a
in favor of
estate.
trust
the
[Bartlett
McCallister,
v.
County
assets of the Dade
supra.] The
defendant,
impressed
coming
thus
a trust on
into the hands of
irrespective
liquidating
the
contract
the
and defend
between
acquired
(which
ant
defendant
contract was admissible to show that
party
the
Bank),
assets of the
County
plaintiff
a
agreement
thereby.
prima-
The
and was not bound
evidence
facie shows
into and
Ready
that
estate went
property
augmented
Page
Bank.
v.
assets of the
[State
Bank,
(2d)
14 S. W.
597.]
IV. It
true
present
is
that
action is one at law on
contract.
However,
equity
impress
essential averments of
suit
a
a
trust on the
funds of the Dade
Bank taken
de
over
present,
prayer
damages
fendant are
save
asks
instea(i
^aw
An
equity.
of relief in
amendment to
the petition praying
impressment
of a
change
funds taken over
cannot be said to
defendant
party,
cause
action.
evidence,
Where
a cause
a
under the
has
action,
petition
theory
re
upon
states
he cannot
cover, or
adequate
cannot obtain
relief,
this court has discretion
matter,
may
permit
petition
remand the cause to
to be
amended,
retrial of
cause
principles
in accordance with
enunciated.
develops prima-facie
plaintiff
evidence
is en
titled to
impress
maintain a suit
trust,
cause is remanded
petition
to permit
but,
amended,
advised,
be
if plaintiff
is so
retrial,
upon a
true,,
evidence stated herein
not to be taken
is
but the issues must be tried on the
be
evidence to
adduced. [Haseltine
v. Smith, 154 Mo. 404,