*1 below judgment tbe of tbe court dissolved injunction be tbe Campbell, C., concurs. reversed. C., Reynolds, foregoing opinion PER CURIAM: Tbe reversed, and judgment Tbe opinion
adopted as court. tbe concur. All injunction dissolved. Exschange Bank, Appellant, The Farmers
Earl W. Respondent. (2d) 156. S. W. Liquidation, City Appeals. November Kansas Court of Leopard appellant. Dean H. Qillihan B. Hyde, Frost, .W. W. and L. G. Earle Alexander Ed n respondent. .
SHAIN, P. J. This is an E: ask- plaintiff, action W. Exchange ing against adjudicated an Farmers to have claim claim,. Gallatin, Missouri, Bank of declared to. be a and, placed.in On March closed the aforesaid bank was liquidation. time of Finance At the the hands Commissioner of for Cantley action, of the of L. was the Commis- commencement S. .Deputy M. in' Joseph Special sioner of Finance and Martin was charge the bank. of plaintiff
The November evidence discloses that on 1924. the w;as $3,335. indebted the bank in the total of This indebtedness sum notes,’ $1,335 $1,000 was of evidenced three for and two notes one each. The bank one notes to evidence discloses sold $1,000 Weldon, deceased, now H. and the other was sold to A. Dockery, now deceased. At the time of the of this commencement action, both the Weldon and estates were in of course appears Dockery notes, administered. As to Weldon private same bank were boxes at that access was had to same the bank officials attended of interest and who to collection of the notes. renewals plaintiff was not at the time a resident Gallatin plaintiff’s father, resident, O. a appears to have looked Netherton. dealings after his son’s business with affairs connection with the son.qn signed ;It bank and had appears his the notes. that at with regular payments renewals were made as to *3 repugnant is estate gone into the admitted directly trust' was that an of the application the ex-maleficia plaintiff' in favor of herein. created bank, there wrongfully taken into the note was the Weldon When It estate. the Weldon in favor of trust an. created was ex-maleficia in favor be declared preference to that for a follows therefore trust of that adjudicated benefits that the first be plaintiff it must the plaintiff.
enures to upon made based is rehearing, a claim Upon this subrogation. equitable principles of powers
In view conferred on 22, circuit courts Section 6 Article of the Constitution of Missouri in view of the pro- Chapter 34, visions of 1929, Revised Statutes in and further con- Supreme sideration of the declaration of Page the in Court State v. County, reported 597, Bank of St. 14 Louis in S. W. (2d), page at power it is held the wherein in the circuit court in such matters priorities equitable nature,” “included of an we conclude that equitable germane principle subrogation to the issue herein and give that this court should consideration to the issue from that stand- point. appears plaintiff
It that the in this case does plead subrogation. not if However, present the facts are plead the failure to same should right duty bar give that it is the court to considera- equitable priorities tion of of an nature. “Although right
It has been held: subrogation should ordinarily plead, yet, plea equity grant the absence' of a may general prayer a if justified relief under relief it is facts alleged Surety and established. Co. 44 Walter, v. S. W. [Western 112, 6235, 182 24 N. W. A. L. R. 1519.] plaintiff fact apparent had an meritorious defense question to an action raises the on as to whether making payment. was a mere volunteer in not be If the volunteer, right subrogation, was but a mere then no exists. subrogation by equity The doctrine of was borrowed from civil However, equity grown subroga- law. so has the doctrine grown right formerly tion while the limited to transaction ' principals between greatly expanded. and sureties it has Under every doctrine as it stands, enough it is broad include instance person pays which one the debt of another for which the other is primarily good liable and should in conscience have been other, provided, course, that there are present circumstances which take the transaction out sphere purely volunteer payment. Equitable Corp. v. Co., Trust N. Y. [Gersta 501; E.N. United Fidelity, etc., States Branwell, 108 Ore.
There can be no doubt but what the Weldon estate would have been entitled claim for the amount of the note and interest purloined that was papers. plaintiff, through fraud manipulation part deceived into execut- ing note that to- reimburse the went Welden estate for taken from the estate conclude, the bank. We paying should not be concluded be a n , mere volunteer. Pomeroy Equity Jurisprudence (4 In Ed.), Section the text pays to the éffect that one who at the instance of the debtor is not a volunteer. Exchange
The Farmers and Merchants Bank of Gallatin was un- questionably debtor to the Welden $1040. estate the full sum of through Plaintiff part fraud of the bank and at bank’s *4 request paid paying the bank’s Welden One debt to the estate. under cannot be held to volunteer. such circumstances be mere Sav- [State ing Spencer al., et 201 S. W. Trust Co. v. 967.] Cyc. 374, pays In 37 is classed as one volunteer who without legal obligation pay. either or moral to presented respondent plaintiff
It is in this case that not showing pay, paid that his father and that is not made that the son paid judgment As the father. of the lower court is to the effect, reason of this transaction the bank is indebted to the in the sum of no appeal and as has been taken from plaintiff judgment respondent position urge is in no point. such a follows, only It that we as are concerned herein to the status of the A.person placed position plaintiff claim. in the cannot be held knowledge defenses, might equity in law or impose all payment. obligation. was present defense of There a colorable It plaintiff, manifest from the record that the under an honest belief was,bound, paid. circumstances, that he Under such we conclude that Webster, subrogated.
tbe
is entitled to be
[Jacobs
604,
App.
Mo.
which no judgment has been cause refusing reversed and preference court in judgment trial to enter with instruction for the court remanded dis- the evidence preferred claim in the amount favor of 'by wrongful act of of the bank were swelled closes the assets listing purloined bank in official opinion. J., separate in a concur, Trimble, All as of the bank. an asset Separate OPINION. CONCURRING Ex- against Farmers Plaintiff, having TRIMBLE, a claim Gallatin, change Missouri, its doors Bank of which closed March on placed in Finance Commissioner the hands of the State rejected who 1926, duly presented such claim said Commissioner time, plaintiff outright. proper Whereupon, due claim established brought have his this suit in the circuit court to $1,111.33 as a one in the sum of declared such. evidence, the Commis- hearing aside court, trial after set claim, adjudged that outright rejection
sioner’s of said $1040, as a in the sum to a but allowed entitled Whereupon plaintiff against assets of said bank. common claim appealed. of two grows to one out of what was done with reference The claim described, third hereinafter
notes for each and also a latter thought description being particular to defer best clarity. difficult perhaps It is somewhat at for the sake of this time is, the acts precisely which note it petition ascertain from the which, pref- plaintiff relies for his asserted with done reference organization alleging existence erence. After consequent going hands of the Commissioner into the its failure and C. O. goes plaintiff, with liquidation, petition on to state father), executed November (plaintiff’s Netherton each, both of that date for promissory notes of delivered two date; and six months after the bank and due payable them ‘‘ delivery, the bank sold and shortly execution and That after such J. H. other to A. said notes to one of delivered purchasers pur- respective Weldon; that each note.so left keep- bank for safe papers with said *5 him in his individual chased notes were collection; and transfer of said that such sale ing and afterwards, knowledge plaintiff; that or consent of made without plaintiff, or of said Weldon knowledge consent and without bank, therefor, an official of said paying without Dockery, and or said
B01 charge ‘having papers thereof and access to the notes and of said Dockery, J. H. and left in bank for safe said A. M. said keeping aforesaid, as private papers did and abstract take such property Weldon, and M. J. Dockery, of the said A. or H. and as said . claimant J. notes believes of said H. Weldon one of the note, aforesaid for the sum of placed and then and there on said time, at number, placed that that is number . . . and same, among so numbered, said note and listed the and the assets property bank, of said and in order to make and accounts the notes balance,’ of said bank such official out of said took of the assets (a given bank certain petition worthless notes list of which each, aggregating with the same amount whole mine.) were (Italics marked as to a delivered trustee. ‘‘ good That claimant reason to believe and does believe that the note so abstracted was taken from wallet and papers the said J. H. Weldon, taking wrongful, that said covering purpose made up hiding notes above men- tioned, taken from bank,
302 gave relying thereon a new in payment
and note in and lieu thereof $1000, bank, officers, to of thereof, payable said and for said sum 41760, in the placed which new note was numbered which note was by 6th, said by assets of said bank as shown note blotter used on June 41254 was 213, 212 note No. pages bank on that date at and and said charged of said bank and of the assets and oft the assets taken out to claimant. delivered 44 41760 30, 1925, That on November said note numbered afterwards . paid discharged $1000, by off and a new note for the sum given by bank, by 43031 claimant said as shown note blotter No. by bank, 227; pages date and that thereafter- said used said at wards, No. 43031 said sold and delivered said Missouri; City, Fidelity Company National Bank Trust of Kansas & compelled 20th of the claimant herein was to and did on the that 1926, 43031, principal interest, No. to said April, pay said note and City, Missouri; Fidelity Company Kansas National Bank & Trust to-wit, May 2nd, 1926, afterwards, on herein was A. the amount pay in full said M. compelled and did Dockery, him, A. M. said the note so sold to the said due .on ’ interest. and the outstanding against this claimant said note for there was “That 1925, Weldon, special, May 1, J. dated given to said H. full, compelled pay principal and and to, 1926, 19, $1,135.43; amount interest, of the sum on June paid 41254 claimant herein has interest on note numbered said Exchange Bank, 41254, $40 on said note numbered Farmers to said 1925, paid 1925, the sum of on November and March on Company, interest said Bank and Trust on National April 22, the amount $31.33. detaining premises the fraudulent of the and reason “That thereof, aforesaid, renewals that this claimant said $1,111.33 of principal sum of on account defrauded has been fraudulently wrongfully taken note so on said interest Weldon; envelope papers of said H. Bank said from fraudulently bank have been of said that the assets $1,111.33 of number the sum said note increased among of said bank and is the other assets passed which sum possession . . . charge Commissioner of in the now charge bank. Finance ' 4 ‘ aforesaid, by said fraud the sum of reason That for the impressed with the trust use and benefit be $1,111.33 should against claimant, demand said bank in this of this priority entitled to should be favor of general against claims or credits all over and above payment ’ ’ bank. allegation duly days sixty that claim was filed and follows Then gum preference in the elapsed, prays etc. Therefore claimant orders, judgments $1,111.33, and des- etc., for such further may just premises. proper crees .as petition gen- perhaps record no answer save discloses :to *7 denial. if At least ease was tried as such were eral filed. case, May Term, July 11, 1928,
At the the Circuit Court heard among recites, things, a decree was rendered which other and court finds-. of “That E. the claim W. Netherton for the sum of ten hundred forty ($1040) dollars on Ex- transactions with the Farmers change by rejected was Bank and which claim Commissioner of charge outright, doing Finance of said bank and in his action in is so hereby aside, rejection by set and after said claim said Com- claimant, Netherton, brought missioner, the W. said E. to have suit preference preferential his claim established as a payment, and for is upon cause now submitted to the court the evidence, and preference, the evidence heard for the claim and the court fully matter, in advised finds that said is not claim entitled to a preference approved (Italics but is entitled to be as a common claim. n mine.) therefore, is, ordered, adjudged
“It by and decreed the court that W. forty of E. Netherton for the sum of ten hundred ($1040) hereby dollars be and the is same denied a or preferential payment hereby for and the same be and allowed as only, against bank, along a common claim same to be with all other payment common claims after the all-preferred claims.” (Italics mine.) long in behalf of claimant intricate, owing evidence many by introduction renewal notes identified numbers long full; it is too set it out in it may recapitulated but
and summarized as follows: November, 1924,
In claimant owed the bank two $1000 notes of each signed by -They $1335. and one note for were (who claimant lived as, Cincinnati) father, surety. his He every no others. The owed notes were renewed six months. finally
The evidence discloses that one of the sold notes was the bank to A. and the other to J. H. Weldon, but neither claimant nor his father knew this. Each -the men, Dockery Weldon, kept private their two boxes in the bank keeping respective for purchased vault safe note so by each them from left box for keeping individual safe collection. alleged Thereafter the cashier petition; ab- box, and, placing stracted Weldon note from his after thereon asset, number, 41254, as if distinctive bank it still were among *8 City. Kansas surety
Finally, due, claimant’s father and when said notes became Bank, Fidelity paid $1000 two notes in full with interest to the the interest, Administrator, $1040 with to the paid, then Weldon’s repre- falsely which cashier obtained from claimant note the had senting $1000 renewal of the note for sold the bank to be in father, the was that the to Weldon. Thus the result of transactions genuine-notes really claimant, only paid owed claimant for not the given son, fraudulently paid $1040 the obtained note but also the get- renewal his note. The bank in the meantime to Weldon retaining ting $1000 the note was to as it have been when the so-called renewal not sent should given. note was correspondence president had the
Some was between concerning return the note sold and claimant to the latter of old president giving Weldon, finally Bank for to as reason delay surety, father O. the failure of the to renewal, and 'sign so, that as soon as he did the old come in to him. would be sent note n originally surety the evidence that claimant and his
It' is clear from only, $1000 two' notes one the other owed three trip Colorado, O. Netherton returned from a each, but when C: closed, he out were notes.” bank had “found there after the four testified that he asked cashier for the C. Netherton Witness O. renewal, just signed was a cashier which the get he it and' Earl there” but said would send “it ’wasn’t the' 'Witness until after bank'closed '(the'plaintiff). discover an. were; paid extra note.” and that “there was He facts what the them; paid Exchange Bank the two notes sold Fidelity National; paid Bank and the interest on the Dockery gave remaining note and a new note for the $500 due on paid note. He note to the Weldon estate. they paid He the four notes security because were due and he was on just them. He did what do, sign the cashier told him to the new (the one), and he would send the old one to supposed witness he did that. Witness knew that “didn’t originally; have but three notes one was thirteen hundred and thirty-five dollars and each,” the other two for and when wit- ness returned Colorado he “found out there were notes four ” signed at the time. I forty the ten Nothing hundred note. was said between witness and cashier about the other “except *9 $1335, belonging J. W. Weldon a third the other to and to the only anything bank. the notes I know I “Those are three about. anything forty ten don’t know about this hundred and dollar note. Thompson’s I I call Doctor attention to the matter. him did told E. got in an extra there on W. Netherton that he had note and would way. anything fix I think it in some he said he didn’t know have to it, finally he said it have to about and then would be fixed. He said (the cashier) I Thompson fix Doctor he it. told he had extra would fix and he said and on Doctor Netherton he would to note promised fix it.” to he prove by president counsel started to the When- defendant’s Feurt) $1040 (Hómer that the note to J. H. Weldon never bank the plaintiff’s said: assets "of the counsel went into'thé assets, was'in the bank’s
“Wé will 'concede that it never and never belong admitted, forty the ten' bank. That is note.” to''the testified, (plain- President Feurt further “But I do know what tiff) forty know, I be- didn’t a ten so far as hundred ow.e always sent interest.” cause he had the careful plaintiff-claimant’s petition, from a
It is manifest from in the foundation examination of all the evidence the case by the bank preference depends upon claim for a the obtention the n notes, proceeds $1000 was done with of one and what justification for clearly appear These matters and form the thereof. proceeds preference plaintiff’s $1000 in If the of said favor. one by the cashier fraudulent act of notes were secured remain same and still went into the bank’s assets to swell the plaintiff claimant without and were obtained from the said bank way bank,, being given only any therefor then value the. right wrong compelled can be done to plaintiff’s is claim for the amount executive officer to establish bank’s the bank’s assets were thus or increased to of the sum enriched too, preference; this, with- plaintiff, and declare it detriment of accomplish regard $1000. which of the two notes was used out system regardless particular jug- fraud, cashier’s up plain- transaction. Nor is the gling notes used to cover of said any way by right the trial court’s to a affected tiff’s a common one on basing judgment of allowance of the claim as proceeds which ever went into the bank’s $1040, part no assets. study analysis of the entire evidence it careful But on a dishonesty Through matters stand thus: the fraud
manifest that originally cashier, $1000 a true at first owned the bank assigned belonging to Weldon and but to and to, bank official had access which the aforesaid was. envelope but receptacle such dishonest official and used its owner’s taken from $1000 of notes. To conceal the taking place of a worthless papers, Weldon’s the bank official $1000 note from absence (claiming renewal note a so-called prepared fraudulently procured appellant’s father C. O. interest), and execute, same without execute, said father did original and which delivery him of the true note of compelling fraudulent went thought a renewal. The to be afterwards, O. Netherton all envelope, into Weldon’s appellant which notes, including false note of went, not to payment but not owe fact did right Plaintiff’s to a either to his estate. rather Weldon, the amount of the not measured preferred common Thompson, cashier, However, the bank’s note. when of package $1000 note of Weldon’s Netherton true abstracted *10 keeping bank), in the (which for safe receptacle or equal for an true note amount of the abstracted substituted
307 notes, note, later bank then the sold said true worthless bank’s belong and to which it then did not had'no title. which got yet. that, has them So without proceeds thereof and bank the sleight regard hocus-pocus part of hand on the to the cashier, $1000 of said true Netherton note for so stolen into, swell, But, by cashier went and now assets bank. money repaid represented by note, until "Weldonwas money by who entitled to claim thus Weldon held money However, it was Ms held. since nothing end, estate, has lost in the since Nethertons Have or his wrong paid him or his estate the the bank cashier fully substituted for the true note order to conceal the latter’s circumstances, package. Weldon’s Under these absence from bank’s assets have been swelled to the extent of Netherton’s true note assigned by the bank to Weldon and the bank still has money arising therefrom; paid but since Weldon has been the full by amount, through more, of loss he sustained the abstraction (payment the cashier of the said of which was true note by paid wrong made Netherton when he fraudulent note fully obtained the cashier and substituted the true is, note), equity, subrogated to, Netherton entitled to be or al rights Weldon; under, to claim Plate Glass Under lowed Ridgewood Realty Co., writers Ins. Co. v. App. 186, Mut. Mo. And, proceeding plaintiff in such should recover from the bank wrongful extent was enriched the cashier’s act in abstract ing receptacle giving from Weldon’s Netherton note and benefit thereof.
If Netherton, Weldon’s estate had not been it would be bought entitled to have the amount of the note Weldon officer, and afterward stolen from it the bank’s established as Claim; herein, paid, but since paid, lost, subrogated than more said amount so he should be right money Weldon’s to recover the from the bank so obtained wrongful him act of its cashier. subrogation necessarily right
“The does not rest contract priority, upon principles equity, but of natural does de- may pend creditor, independent the act of the him but Cyc. 366-7; Savings also the debtor.” State Trust Co. [37 969; Spencer, Berry Stigall, 690; v. S. W. Mo. Daven- Timonds, App. 157 Mo. port v. 366.] guidance subrogation, “The the initial doctrine of under of Chan- applied extensively much more cellor has been in American Kent, English jurisprudence. encouraged than in The doctrine is much highly protected. It is a doctrine which favored and is not re- formerly. application courts are inclined stricted rather although principles formerly restrict so that to extend than to *11 sureties, principles transactions between limited to right was very application. liberal It expansive and has a it is broad now longer suretyship, but the doctrine has been to cases of confined is no importance, becoming in more expanding steadily growing subjects persons, application to various and classes of its general in as being modified to meet the circumstances of cases principle C. J. they arisen.” [60 706-7.] subrogation equitable assignment requires con- or no “Right of basis, its it is principles since founded relation tractual solely appeal makes its to the conscience court; equity and equitable person money who has it is that a where furnished creditor, person should be substituted such will pay a debt for mine.) (Italics Rosen, N. Y. Supp. v. substituted.” be [Huff Peterson, 128 Pac. 689; v. Olson 191.] discharged by obligation primarily is one not liable “When acting performance to be who believes either but himself duty, legal right, request legal protection for the of a or at the a or ultimately cases, bound, and in certain favored party even other public policy, may pres- where none of the above circumstances be discharging ent, party obligation equity is in thus entitled reimbursement, demand, original performance for his obligation, application all thereto of securities and collateral mine.) Pomeroy’s (Italics Equity rights held the creditor.” [5 ' (4 Ed.), 2343, p. Jur. sec. 5183.] successfully claimant, plaintiff, It cannot be maintained that is subrogated because he is a volunteer. not entitled mere He not. payment in performance that be made of a
“It sufficient supposed legal duty, good faith, though party making even (Italics mine.) really Pomeroy’s payment were not bound.” [5 Jur., Lloyd President, Equity etc., Nord-Deutscher see. 462; Valley Co., Mississippi 110 Fed. Sun. Mut. Ins. Co. v. Insurance Co., 17 Fed. Transfer 919.] obligation person “A who has a debt under colorable to do may protect claim, so, his own or under an honest that that he belief mistakenly good bound, but in faith believes he or who he is so lien, protect discharges property, has an interest mine.) (Italics 719; subrogated.” C. J. Jacobs v. Web- will be [60 ster, App. 199 Mo. 604.] who, any supposed man without real in- “The volunteer is the protect, request, without the of his own to debtor’s without terest agreement put creditor any with either debtor or that he shall be rights, any equity creditor’s and without in his possession own favor, pays the debt. The courts intermeddles have no time very The term ‘volunteer’ is a unfortunate one. him. Con- language fusing meaning meaning, with its in common technical courts subrogation have often denied ap- where the unfortunate plicant, justice as a right, matter of clearly entitled to it.” Brandt, Suretyship (3 Ed.), pp. 619, [1 620.] quoted above is with approval United States & Guaranty Co. v. McClintock, 26 (2d) 944, Fed. entitled to a claim in the amount of the true into, amount that went and now in, *12 the assets of the judgment should be reversed and the cause remanded with directions to set aside the order made rejecting Commissioner outright said claim entirely, judgment render establishing “preferred claim” in plaintiff’s favor swelling for the sum so the assets of the said bank as hereinabove This, understand, stated. Judge is the result reached in I Shain’s opinion result, I concur. Judge rel. W. T. G. H. ex Rose, Appellant, State Fry, Probate Respondent. (2d) Court, 67 S. W. 550. City Appeals. Kansas December Court January appellant. Journey T. T. and J. respondent. Moss for Gibson, and J. B. Dan D. C. Chastain pro- proceeding brought a T. TRIMBLE, W. Rose J. Relator County, Mis- Judge of Vernon Fry, Probate against H.G. hibition Rose, as compelling judge from probate souri, prohibit as such final settlement children, make four guardian of his and, duly appeared Respondent probate court. in said guardian writ, demurred preliminary making to the a return instead nor action a cause therefor, not state because it did petition pro- either any right prohibition to a writ had that relator show sustained by the court The demurrer permanent. visional or notes .these intervals principle of interest and made that at the were so time the bank on. plaintiff’s was over actual indebtedness consisted of one note of taken (Dockery) $1,000 (Weldon) $1,160, for one and one note for appears $1,000. However, it that an evidence official taken the note out papers Weldon of the Weldon estate had. charged bad entered, off notes to like amount had and. $1,000 Weldon note as bank asset appears and it further that the $1,160 $1,000 and this Weldon note had been sold to the Company City, National Bank & Trust Kansas Missouri. The evi- through- misrepresentation dence discloses that fraudulent of a bank pretense renewal, original delivered, official wherein under note was plaintiff the father was to execute for his son induced an extra $1,040, a, presumably $1,000 renewal the Weldon note and $1,040. interest. This .note signed to which C. O. Netherton had his security son’s and to which-he name added name never went as. into bank and at the time the bank was taken over the Commis- $1,040 sioner this found in estate where papers evidently placed .place had been official take the .bank $1,000 wrongfully note that had been taken therefrom. father, through his plaintiff, that the from the evidence appears It outstanding notes pay all of and did pay upon called course, that follows, of It aforesaid. $1,040 note which included indebtedness. actual than his $1,040 more out but refused $1,040 plaintiff’s allowed court The trial allowing preference judgment From preference. give same appealed. OPINION. room rehearing. is no There before the court This cause is were of the defunct assets but what the to doubt sum in the full by the evidence disclosed by the transaction swelled theory that $1,040. originally presented case was in favor directly created a trust the transaction ex-maleficio shown note are entire fact that-the plaintiff. The
Notes
the assets notes were all worthless, whatever; uncollectible and of no value that thereafter and day May, on or about 1st repre- cashier of said bank surety sented and stated to and C. O. his aforesaid, the note that it had sold J. H. Weldon one of said (notes) and payable, that same was due and and that said bank held! renewal; said note for collection that if this claimant and surety May his would a new 1, 1925, execute note of date of for the payable Weldon, special, sum of H. six months after date eight per per annum, with interest thereon at rate cent bank its procure said officers would and deliver to said! that, $1000, Weldon; hereinbefore mentioned H. as sold to J. relying promise, surety on said claimant O. Netherton, his made, aforesaid, executed delivered to said pay- such note Weldon, $1040, special, able to J. H. for said sum of but said bank not deliver surety, failed to this claimant or said said note for placed hereinbefore mentioned as in the assets bmt and retained such note No. assets, 41254 in parties sold the same unknown to these claim- ants. Dockery “That said note so renewed, sold to A. was never nor paid, knowledge presented to and claimant had no or information that said A. M. held such until after said bank and its placed Special affairs in the were hands of such Commissioner of 4, 1926. Finance on March to-wit, “That No. 41254 payable, therefore said note became due and agents charge falsely and said bank and its officers and thereof fraudulently represented that such note was one unpaid, believing then and claimant such false statement
notes place it a number of worthless bank, put said assets the bank removed owned which the cashier retired or live assets: father and his cashier thereafter stated wrote notes, it for now was due that the bank sold one of the but had surety renewal, execute collection and if claimant and his would (this $40'being interest-accrued), for extra new note cover with Weldon, special, six months after date H. due payable exchange old note eight per interest, it for the cent the bank would Weldon, procuring said after hereinbefore mentioned as sold $1000, payable it to him.- The note note of would send old surety and sent to to Weldon then executed claimant and his placed private it box to take cashier in Weldon’s place thereby cashier and taken therefrom fact been taken therefrom. But the -cashier did hide the had note, given note had been not send the old renewal, it in assets later sold to claimant but the'bank’s note of National Bank in the other claimant to
notes that (plaintiff) him (for $1040) he would send this one note that this one supposed nothing to renew. only There was about one note. . In words, other I paid notes, four one to the Dockery estate, Fidelity.” one to Weldon and tWo examination, On' redirect witness O.C. Netherton testified that he any money never borrowed from J. H. Weldon. “This ten hundred forty supposed forty dollar note was to be a renewal a note and (the cashier) dollars interest. I him forty asked about dollars thought strange and he said it I was interest. it was at the time that boy generally paying interest, thought had been and I strange just question he hadn’t but I didn’t it and signed it and Mr. pay any money. went on. Weldon didn’t me I thought anybody those all in bank. I notes were didn’t know else knowledge I had them at all. I had it. absolutely no relied cashier) Thompson (the what I told me. never even went to investi- gate it at all.” president only of the bank testified that Netherton owed notes, notes, belonged Dockery three two one which