11 Mo. App. 292 | Mo. Ct. App. | 1881
delivered the opinion of the court.
Plaintiff and defendant are banking corporations doing-business in St. Louis. The action is upon two checks drawn upon defendant and held by plaintiff. The cause was tried by the court, .a jury being waived. The finding and judgment were for plaintiff.
The following facts appear from the pleadings, evidence, and admissions on the trial. Cobb, Delhonde & Co. were depositors in the bank of plaintiff, and also in the bank of defendant. They drew the checks in suit, one for $623.42 to the order of Henry Ames & Co., and the second to bearer. These checks were drawn upon defendant. The persons to whom these checks were delivered by the maker, indorsed them, and presented them, about October 23, 1874, at the counter of plaintiff. The blank printed checks of Cobb, Delhonde & Co., upon the two banks, had a general similarity of appearance. The cashier of plaintiff carelessly supposed the checks were upon plaintiff’s bank, and stuck them upon the cancelling knife, and they were by plaintiff’s book-keeper charged to Cobb, Delhonde & Co., and credited to the parties by whom they were respectively presented. About October 31, 1874, the president of
Cobb, Delhonde & Co. were adjudicated bankrupts in the United States District Court at New Orleans, on March ’23, 1875, on their petition filed January 8, 1875. The draft of Bartley was credited by defendant with the amount of the balance on open account in their favor, and defendant proved up in bankruptcy the difference only. The credit thus given was $688, being the entire balance of Cobb, Delhonde & Co. with defendant on the opening of its bank on October 31, 1874, the day the checks were presented. Defendant received a dividend on the balance only. Cobb, Delhonde & Co. were afterwards discharged in bankruptcy.
There was some attempt to show that the question of the liability of the defendant was, by agreement, left to John R. Shepley to determine. The trial court found that no' such agreement was made, and no more need be said as to-that.
The books of defendant show, and it is not disputed, that , defendant, from the date of these checks until after their presentation, was in funds to pay them.
The decisions of respectable courts may be adduced for and against the proposition that the holder of a banker’s check may maintain an action at law against the bank hav
Defendant did not refuse to pay these checks on any ground of possible doubt as to whether they might not perhaps have been defaced by the maker, nor because it required time to inquire as to this. Payment was refused on the distinctly illegal ground that defendant claimed a right to sequestrate the bank account of Cobb, Delhonde & Co. to apply upon an acceptance not yet due, and which might perhaps be dishonored. Then when the draft matured, without authority to do so, defendant credited the draft with the whole deposit account, and sets up, in this action, as a ground of defence, that it was induced to do so by the acts of plaintiff, and thereby lost the dividend which it would otherwise have collected from the estate of Cobb,
“7. If the court finds from the evidence that upon the presentation by plaintiff of the checks in question and refusal by defendant to pay same, the defendant claimed the right to apply the deposit of Cobb, Dolhonde & Co. in the defendant’s bank on the Bartley draft accepted by Cobb, Dolhonde &Co., and soon to become due, the said Cobb, Dolhonde & Co. then having suspended payment, as the parties knew, and thereupon, at the request of plaintiff, the defendant issued its cashier’s check to J. B. Shepley for the amount of the checks in question, and received the checks in question with the understanding between the parties at the time that, if said draft and acceptance were not paid in due*300 time, the cashier’s check should be returned by Mr. Shepley to defendant, and the checks in question to plaintiff; that said draft and acceptance were not so paid, and on request the said cashier’s check was returned by Mr. Shepley, with the consent of plaintiff to defendant, who then and there returned to Mr. Shepley for plaintiff the checks in question ; and it was then known to the plaintiff and Mr. Shepley that defendant’s object was to apply the amount of deposits of Cobb, Dolhonde & Co. equal to said cashier’s check as a set-off on said unpaid draft and acceptance, and said defendant did proceed to apply the amount aforesaid in part payment of said acceptance, and the acceptors having been adjudicated bankrupts, proved up the defendant’s claim for only the balance of said acceptance, and thereon only received dividends, and said bankrupts have been duly discharged, and plaintiff did not again assert its claim on the checks in question against defendant until this suit was brought, then the court declares the plaintiff acquiesced in the appropriation of the said deposits by defendants under its claim at the time made, and cannot maintain this action.”
As to estoppel, the court found the facts against defendant, and if there was no estoppel plaintiff was entitled to recover on the undisputed facts, unless we are to reverse the previous ruling of this court as to the right of a check-holder to sue the bank on which the check was drawn. The rule which was laid down by this court, after solemn argument and serious consideration, in a matter concerning property rights, and which we adhered to, when, after the lapse of some time, the same question was again presented, was the warrant to plaintiff for commencing this action. It is possible that, as counsel for appellant insists, the opposite rule is, after all, the better one. As to this the courts of this country are not agreed. Judge Thompson was not a member of this court when McGrade v. German Savings Institution and Senter v. Bank were decided; but I am
The judgment is affirmed.