73 Mo. App. 566 | Mo. Ct. App. | 1898
Lead Opinion
The petition herein seeks to establish a trust against defendant as assignee of an insolvent bank for certain money alleged to have been deposited by plaintiff as guardian of two minors with said bank for collection. The answer admitted defendant to be the assignee of the creditors of the bank, and denied the other allegations of the petition. The facts are that on the eleventh day of April, 1896, plaintiff deposited with defendant’s assignor a pension check for $1,084.53, payable to himself as guardian, receiving therefor a duplicate slip signed by the officers of the bank, showing the deposit of the pension check by plaintiff as guardian. The bank, however, at the same time made an entry on its books accrediting deposit to the plaintiff individually. The bank collected said pension check and paid out $179.50 thereof
The only question presented by the record is whether under the above facts the assets in the hands of the defendant can be charged with a trust for the unpaid portion of the sum collected by the bank on the pension check deposited with it. Under the facts in this case, as we fihd them to be, the question must be answered in the affirmative. ■ The bank receiving the check for collection for plaintiff as guardian could not transfer to its assignee for creditors any title to the proceeds which it did not itself possess. The bank could not have used such proceeds in the payment of its demands against the plaintiff in his individual capacity, as between him and the bank the relationship of trust was full. and complete, and the bank could not denude itself of this obligation by applying the fund to the payment of its claims against the depositor personally. It might have paid his cheeks to third parties out of the fund, but it was disabled from converting any part of the fund to the payment of his personal debt to it. Ihl v. Bank, 26 Mo. App. 129. If the bank could not pay its own debt out of the fund in question, it necessarily results that it could not apply it to the payment of debts due from it to its general creditors, nor to the assignee representing them, for he simply succeeds to the rights of his
The judgment herein will be reversed and the cause remanded, with directions to the trial court to enter a judgment for plaintiff for the balance of the collection of the pension check. Judge Blaxd concurs; Judge Biggs dissents and asks the case to be certified to the supreme court as opposed to the cases of Phillips v. Overfield, supra, and 74 Mo. loc. cit. 418; 67 Mo. 395, and 79 Mo. 252. It is so ordered.
Dissenting Opinion
(dissenting). — Under the authorities in this state the conclusion reached by my associates must rest on two affirmative propositions. First. That as to the fund in question the relation of principal and agent and not that of debtor and creditor existed between the appellant and the bank; and, second, that the evidence tended to prove that the amount collected by the bank and which was wrongfully mixed with other assets or money of the bank increased or swelled the assigned assets. In my opinion the record sustains neither proposition.
But conceding that the draft was delivered to the bank for collection only, the question remains is there any evidence to warrant the conclusion that the conversion of the proceeds of the draft swelled the assigned assets of the bank? This is the doctrine of all the cases in this state. National Bank v. Sanford, 62 Mo. App. 394; Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Phillips v. Overfield, 100 Mo. 466. The “ear mark” doctrine was first discarded in Harrison v. Smith, supra. It was there held that although the trust money had been intermingled with the individual money of the trustee so that it could not be identified, or that it could not be traced into a particular asset, yet a court of equity would declare a prefer
So in the case at bar it is just as fair to say that the small amount of property assigned to the defendant was the product of money subsequently deposited by others as to say that it was the prdduct of the money collected by the bank on the pension check. For twenty days after the check was received the bank continued to do business in the usual way. I therefore dissent from the majority opinion, and as I am of the opinion that the decision is opposed to the doctrine of the cases herein cited, I ask that the cause be certified to the supreme court for final determination.