278 Mo. 695 | Mo. | 1919
Certiorari to the St. Louis Court of Appeals, directing it to send up for review the record in the case of Henry R. Strong v. Commonwealth Trust Company. In that case the plaintiff, Strong, had obtained a judgment in the Circuit Court of the City of St. Louis against the Commonwealth Trust Company. There were cross-appeals and the St. Louis Court of Appeals reversed and remanded the case with directions. It is contended by the relator here, that the opinion thus rendered contravenes certain rulings of this court.
The facts, as disclosed by the opinion, are that Strong, the plaintiff in the original suit, was the editor, publisher and owner of a trade journal in the City of St. Louis, entitled the “National Druggist.” William S. Ferguson was an employee of Strong’s. Ferguson’s duties were those of a stenographer and bookkeeper; in addition he did general clerical work, opened the mail, receipted for cash, checks, drafts, subscriptions, and payments for advertising. From day to day he deposited the checks and drafts payable to Strong or the National Druggist. Checks and drafts received by Ferguson were required to be deposited in the Mechanics-American National Bank, with which alone Strong did his banking business. Strong’s account in that bank was kept during the period covered by this suit in the name of the National Druggist. To enable Ferguson to make the deposits of the checks and drafts with the bank, Strong provided a rubber stamp which, up to and including 1908, read: “Pay to the Mechanics-American National Bank for credit of National Druggist,” and subsequent to that date: “Pay to the Mechanics-American National Bank for the credit of Henry R. Strong.” It was Ferguson’s duty to deposit checks and drafts received in the course of the business during the time stated, as indicated by these stamps. He was never authorized to draw or sign checks, and he did not as to the funds in the Mechanics-American National Bank. When he received remittances he receipted for them either in the name of the National Druggist, or
During the time of Ferguson’s employment, he was at his own instance listed in the St. Louis Court Directory, after his name, as “Clerk National Druggist; residence, 3527 Henrietta Street.” Neither upon the letterheads, papers nor documents of the National Druggist did he appear as an officer or otherwise. He kept in the discharge of his duties while employed by Strong three books: a journal, ledger and cash book. In the journal and ledger he entered the cash, checks and drafts received, and like entries were supposedly, or should have been, entered in the cash book. About April 30, 1913, he did not appear at the office, as theretofore had been his custom, and investigation disclosed that he had absconded and was short in his accounts. It was discovered upon an examination of the books that in many instances the receipt of checks and drafts “from patrons of the Druggist had been noted on the ledger, but that no corresponding entries had been made on the cash book. Further investigation disclosed that these checks and drafts had been cashed by Ferguson, as evidenced by the canceled checks sent by the various makers to Strong during the course of the inquiry. It was developed that during the period of Ferguson’s employment he was indebted to the account of the National Druggist by reason of such peculations in a sum of about $32,198. In the perpetration of these fraudulent conversions he had opened an account with three banking institutions, among others, the Commonwealth Trust Company, the relator here. The account opened' by him with the Trust Company was in the name of the National Druggist. These deposits with the Trust Company commenced on October 17, 1907, and continued from time to time until October 29, 1908, and aggregated $6470.76. They were all made payable to the
The Trust Company made no inquiry as to Ferguson’s right to open the- account with it, or to sign or indorse checks in the manner stated. During all of this time the office or place 'of business of the National Druggist was in the Century Building, a few blocks distant from the Trust Company, a fact that could have been ascertained from various public sources. Although the place of business of the National Druggist, as given by Ferguson on the deposit slips drawn by him, was that of his private residence, 3527 Henrietta Street, and was never the address of the National Druggist, or of Strong, as the most cursory examination would have disclosed, the Trust Company made no effort to ascertain the true facts. It. simply, without any inquiry, accepted the deposits made to the National Druggist, and paid them out on checks signed by “W. S. Ferguson, Treasurer.”
The examination, as stated, disclosed that Ferguson had deposited in the Trust Company funds belonging to the National Druggist, aggregating $6470.76, and had subsequently drawn it all out as treasurer, and had deposited it in his own name. Armed with these facts, Strong made demands in May and August, 1913, of the Trust Company for the payment to him of the amount stated. The latter refused payment. Whereupon, this suit was brought.
The petition is for money had and received, the amount claimed being $6470.76.
The Trust Company pleaded further, in, defense that the relation of Ferguson to the National Druggist and to Strong as business associate, cashier, bookkeeper, treasurer, and general agent was such as to authorize him to make the deposits and draw them out as disclosed by the facts; that if any loss was occasioned, it was due to the carelessness and negligence of Strong in his grant of unlimited authority to Ferguson and his neglect, to examine the condition of the latter’s accounts; that Strong was barred by the five-year Statute of Limitations ; and that he was further estopped by lapse of time and laches in ascertaining his claim against the Trust Company. It was further alleged that Strong had received from Ferguson a portion of the money on deposit with the Trust Company, and that having obtained and used the money, and failing to offer it to the Trust Company, Strong, by bringing this action, had ratified the act of Ferguson in indorsing the checks. There was no evidence in support of this last averment.
A specific reply in denial was interposed to all of the defensive matters pleaded in the answer.
The trial court instructed the jury, which so found, that all items proved by Strong to have been received by the Trust Company and drawn out by Ferguson prior to August 27, 1908, were barred by the Statute of Limitations at the time of the institution of'the action, and. that the verdict should not be for more than $917.40. The Court of Appeals, in reversing .this judgment, held that the Trust Company had received the money, credits and effects belonging to the National Druggist for Strong, without his authority, and that they had been withdrawn by an unauthorized party, rendering the Trust Company liable for the amount so unlawfully deposited and withdrawn. That the trial court erred in
The judgment of the circuit court was therefore reversed by the Court of Appeals and the cause remanded with directions to the trial court to ascertain upon a retrial of that issue alone the full amount which may have been deposited in the name of the National Druggist with the Trust Company by Ferguson from the opening of the account, and of the withdrawal of same by him, with interest thereon from date of demand, if a demand had been shown, or otherwise from the institution of the action.
The question of jurisdiction here to be considered is one of amount, and it is therefore purely pecuniary in its nature.
The amount sued for here, as stated was $6470.76 and interest from the date of demand to the rendition of the judgment, at the rate of six per cent per annum. Where a plaintiff appeals the amount claimed in his petition is, in ordinary cases, the measure of the appellate court’s pecuniary jurisdiction; where a defendant appeals, the measure of such jurisdiction is the amount recovered below. [Craton v. Huntzinger, 187 S. W. 48; Ferguson v. Comfort, 264 Mo. 274; Eads v. K. C. Elec. Light Co., 180 S. W. 994; Berry Foundry & Mfg. Co. v. Inter. Moulders Union, 251 Mo. 448.]
Here there were cross-appeals. Where both parties appeal, and the amount in dispute on, either appeal is within the jurisdiction of the Supreme Court, both appeals should be sent to, and determined here. [San-dusky v. Sandusky, 265 Mo. 219.] The amount the plaintiff sued for, viz., $6470.76, with interest thereon, as prayed for, at the rate of six per cent per annum from the date of demand, May 15, 1913, to that of the rendition of the judgment, March 25, 1915 (Keleher v. Johnson, 272 Mo. 699; Con. Co. v. Bagley, 231 Mo. 157), aggregates $7293.32, which brought the action, on
II. The question remaining for determination is as to the harmony of the Court of Appeals’ ruling herein with the last previous decisions of this court.
The foregoing repetition is justified only upon the ground of bringing the relevant facts in more immediate connection with the Court of Appeals’ rulings thereon. The Court of Appeals found, among other facts, that defendant Trust Company had accepted deposits from Ferguson as the funds of the National Druggist (plaintiff’s business name); that Ferguson was at the time acting as agent; that the checks or drafts so deposited were placed to the credit of the National Druggist, the owner thereof, which was Ferguson’s principal; that about the same time or frequently thereafter, Ferguson drew out the money theretofore deposited in the name of the National Druggist, and opened an account with the defendant in his own name, and thereafter deposited various amounts in his own name and to his own credit with defendant; that there was no evidence that Ferguson was ever authorized to draw or sign checks against any account of the National Druggist, the plaintiff; that defendant’s claim that-plaintiff had recovered part of this money from defendant finds no support in the evidence.
That we are governed in our determination of the matter here at issue by the finding as to the evidence by the Court of Appeals, it is only 'necessary for us to
The relevant facts thus emphasized, there remains for determination the propriety of the Court of Appeals’ ruling as to the application of the Statute of Limitations. No clearer, or to my mind, more conclusive presentation of the court’s attitude in-this regard can be made than that found in its own language, which is as follows:
“When we consider the appeal of plaintiff, however, we are compelled to hold that the learned trial couit committed error in giving the instructions to the effect that all the items of the account prior to August 27, 1908, were barred by our five-year Satute of Limitations, Section 1889, Revised Statutes 1909. Plaintiff was entitled to recover on the whole account under the evidence, if the jury believed that evidence, with interest at six per cent per annum from the date of demand, if the jury found that there was a demand; if not, then, from the date of the commencement of this action if made or brought within five years from the last item in the account, namely, October 29, 1908. There was evidence that demand had been made of defendant about May 15, 1913, and that a more formal demand was made in August, 1913. .This action was commenced on September 20, 1913. The five-year Statute of Limitations, therefore, did not commence to run- until the date of the last entry in the account.
“It is true that the relation of a bank to its depositor is not, strictly speaking, that of debtor and creditor. If the latter was the situation, it would have*707 been the duty of the debtor to have tendered payment. Bnt the bank owes no snch duty. It may hold the funds on deposit until demand is made on it. Such is the holding of our Supreme Court, in Missouri Pacific Ry. Co. v. Continental Natl. Bank, 212 Mo. 505, l. c. 519, Without repeating what is there said we refer to it as conclusive on this point. The text-writers recognize the same rule. Thus, in Magee on Banks and Banking (2 Ed.), sec. 313, p. 592, it is said: ‘Unless there is a statute to the contrary, the established law is that' the statute does not begin to run against an ordinary deposit until demand.’
“In Vogel v. Kennedy, 127 Mo. App. 228, we said (l. c. 235), that the Statute of Limitations ‘does not begin to run on an open, mutual and running account until the date of the last item. ’ . That is a well-settled proposition. See also, Somerville v. Missouri Glass Co., 144 Mo. App. 463, l. c. 467, 129 S. W. 474, the opinion of the Springfield Court of Appeals being adopted by us, as see 160 Mo. App. 565.
“In a sense this account was treated by'defendant as a mutual, running account between it and the ‘National Druggist.’ It commenced October 17, 1907, and was carried down to and including October 29,1908, balanced from time to time, balances,, carried' forward until finally closed out and balanced October 29, 1908, when there appeared a balance of $344.23 in favor of ‘National Druggist,’ which on that date was transferred to another bank. This made it a mutual account, as see Sidway v. Missouri Land and Live Stock Co., 187 Mo. 649, l. c. 669.”
This conclusion of the Court of Appeals meets with our approval and is in accord, as stated, with the rule announced in the well considered case of Mo. Pac. Ry. Co. v. Cont. Natl. Bank, 212 Mo. 595, to the effect that the Statute of Limitations does not begin to run in favor of a banker against his depositor before demand of payment by and a refusal to pay on the depositor’s order. The deposit is not due until the demand is made; hence the necessity of the demand and a refusal
The Court of Appeals’ ruling is contended by appellant to be in conflict with Johnson v. Smith’s Admr., 27 Mo. 591; Landis v. Saxton, 105 Mo. 486; and Shelby Co. v. Bragg, 135 Mo. 291.
In the Johnson case it was 'held that the Statute of Limitations would begin to run against one assuming, without authority, to act as guardian of another and receiving money for the latter’s use, immediately upon the receipt of same unless the existence of a disability be shown. .
In the Landis case it was held that the statute would run in favor of the secretary of a corporation as to its money withheld by him from the date of the obligation to pay and that demand was not necessary.
In the Shelby County case it Avas held that the right of action against a county clerk for fees Avithheld by him in excess of his salary accrued and the statute began to run as soon as the right to declare and enforce the claim existed.
The statement of these' rulings will suffice to show their utter irrelevancy to the matter at issue. While it was not necessary so to do, Sherwood, J., in the Landis case distinguishes cases of that class from those in regard to deposits in banks to which he says that the rule he there announces has no application to such cases; that to terminate the bailment and put the bailee in the wrong, if a banker, a demand must be made of him and his refusal to accede thereto shown.
, Appellant does not charge that the holding of the Court of Appeals is in conflict with this court’s ruling in Sidway v. Land & Live Stock Co., 187 Mo. 649; but that the Court of Appeals has misapplied the ruling in that case. The rule announced in the Sidway .case, if it can be thus designated (p. 671), is that it was impossible under plaintiff’s own testimony to hold that there was any express or implied contract that the items of the exhibit in evidence should constitute a balance,
Finding, upon a more careful review, no merit in relator’s application, the preliminary writ issued herein is quashed. It is so ordered.