Muth v. St. Louis Trust Co.

88 Mo. App. 596 | Mo. Ct. App. | 1901

BOND, J.

Trust companies have not all the capacities of banks of discount and deposit or ordinary banking institutions ; for the latter are especially authorized to create the relation of debtor and creditor by the acceptance of money for the account of their depositors. Trust companies, under similar circumstances, are held to be only trustees for the 'benefit of their depositors. This technical distinction in the character in which banks and trust companies are accountable for deposits, is held to require the latter to pay interest on a deposit to the credit of another in order to acquire the right to receive the same and pay it out on checks and drafts of the depositor. As the rate of interest thus required is fixed neither by legislation nor the constating articles of trust companies, there seems to be no legal obstacle to the exercise by trust companies of all the functions of ordinary banks as to receiving and paying out deposits of money, provided a rate of interest, however small, is allowed upon the sums so received. State ex rel. v. Lincoln Trust Co., 144 Mo. 562. The present record conclusively shows that the defendant trust company has fully entered upon this particular field of banking enterprise; that it keeps the accounts of its depositors and pays checks against them as freely as if it had been organized for that purpose. We think, therefore, it is not in a position to plead any incapacity to certify checks on the ground that it was not chartered as a.bank and, hence, had no right to certify a check for the reason that such an act belongs strictly to the banking business. If defendant sees fit to usurp the privileges of this department of banking business, it must accept the incidents of such action in the creation of responsibility as well as privileges. Moreover, there is no great technicality about the certification of a check; it is simply analogous to the acceptance of a bill of exchange, and that may be done by any person, natural or artificial, upon whom it is drawn. Bank of Springfield v. First Nat’l Bank, 30 Mo. App. loc. cit. 275. We are, therefore, wholly unable to concur in the view; urged by the learned counsel for appellant, that it was powerless to certify a check because it was not incorporated as a bank.

II. The vital question in this case, is, whether or not the evidence adduced on the trial was susceptible of the legitimate inference that the paying teller, F. P. Jones, in certifying the check in suit, was acting within the scope of the real or apparent authority confided to him as the agent of the defendant ? A full consideration of the evidence leaves no doubt in our minds on this subject. There was positive proof that such certification had been made some years before on a different check, payable to the plaintiff, which check was used in lieu of foreign exchange and subsequently paid by the defendant. There was similar evidence with reference to several checks of another customer of the bank, extending over a series of years. The teller admitted that his habit had been to make such certifications for the benefit of the payees of checks, and that all of such checks so certified by him were subsequently paid and taken up by the defendant. This evidence furnished a legitimate basis for an inference of actual authority on the part of the paying teller in so acting, and also ostensible authority on his part to any one familiar with such transactions. That the defendant trust company was acquainted with the acts and doings of its paying teller in this respect seems to be a necessary inference from the payment by it of all the checks so certified by him without objection or remonstrance, as well as its retention of such employee after the knowledge thus acquired of the agency undertaken by him. Indeed, the agency of the paying teller for the defendant, under the facts in this record, could be well rested upon custom and acquiescence by defendant in a course of dealing on its behalf.

Ey the certification of the check in favor of plaintiff, the defendant trust company assumed an obligation the same in degree, which a bank would have contracted under a similar state of facts. Of such an obligation when assumed by a bank, it is said that it thereby “becomes primarily liable to the holder and remains so liable until discharged by payment, release or tbe statute of limitations. Meade v. Merchants Bank, 25 N. Y. 143. A bank certifying a check ‘good,’ creates a simple and unconditional obligation on its part to pay the same to the holder on demand, and demand may be made by him at anytime which may suit his convenience, and no laches are imputable to him by reason of delay. Willets v. Bank, 2 Duer. (N. Y.) 121.” Bank of Springfield v. First Nat’l Bank, 30 Mo. App. loc. cit. 275, supra.

Our conclusion is, that the ruling of the trial court in awarding a new trial in this cause was correct. It is, therefore, affirmed and the cause remanded.

All concur.