Teichman Commission Co. v. American Bank

27 Mo. App. 676 | Mo. Ct. App. | 1887

Ellison, J.

The American Bank recovered a judgment in the Lafayette circuit court against “ Lewis W. Wernwag, agent,” and L. W. Wernwag, for $494.39. The judgment was the result of a suit on a note to said bank signed both by the name of “L. W. Wernwag, agent,” and L. W. Wernwag. An execution was regularly issued on such judgment, under which the Lafayette County Bank was garnished as the debtor of Wernwag, as individual and as agent. The Lafayette County Bank filed its answer to the interrogatories propounded, in which it stated there was in its possession a balance of one thousand and twenty-five dollars to -the credit of “L. W. Wernwag, agent.” The interpleader herein filed its interplea claiming said money. The American Bank, plaintiff in the execution, filed an answer to the interplea denying each allegation therein. On a trial with a jury, there was a verdict for the interpleader and the American Bank appeals to this court.

The sole issue in the cause was whether this sum of $1,025.00 was, at the time of garnishment, the property of interpleader. Interpleader contends that the testimony shows, and such is its theory of the case, that about twelve years ago L. W. Wernwag failed, and has been wholly insolvent since ; that soon afterward a note was •endorsed by certain of his friends, among them, the president of American Bank, to allow him to continue business ; that he did business with that bank until 1883, through an arrangement with St. Louis merchants by which he bought grain, shipped to them and drew on them; about June, 1883, getting behind, this business ceased, and he gave the note, $396.21, to the American Bank, then Asbury-Catron Bank, for the balance against him ; that then he made the arrangement with the inter-pleader by which he was to buy wheat for it; inter-pleader to furnish the money and the wheat to be shipped to it in its name; that Wernwag was to draw through the Lafayette County Bank, and inter-pleader to accept and pay drafts. The evidence tends to show that since the day of the arrangement and before, Wernwag was wholly insolvent and had no money whatever ; that this money attached arose from drafts deposited by Wernwag as agent for interpleader.

The bank introduced evidence tending to show that Wernwag had used the word, “agent,” in connection with his name before his relations with interpleader began, and that he transacted business as “agent” with other parties after such relations with interpleader; that the term agent was merely a sham. The evidence further tended to show that a portion of the money which went 'to make up the sum garnished, came from drafts on Butte & Albrecht, commission merchants, to whom Wernwag had made shipments of wheat. Two drafts on this firm of three hundred dollars each, were mentioned as having been drawn on this- firm, though probably only one went into the account.

The following instruction was asked by the bank, but was refused as asked, and the words appearing therein in brackets, were interlined by the court, after which it was given against the objection of the bank:

“4. Even if the jury should believe, from the evidence, that the money drawn by said L. W. Wernwag on drafts for shipments of wheat on said ‘Teichman Commission Company,’ and deposited by said Wernwag in the Lafayette County Bank, to the credit of ‘ L. W. Wernwag, agent,’ was, at the time of the garnishment in this cause, the money of said £ Teichman Commission Company,’ yet, if they believe and find, from the evidence, that a part of the money that went into said account, at said Lafayette County Bank, and from which, in part, resulted said balance of one thousand and twenty-five dollars, there remaining at the time of the service of the garnishment in this cause, arose and came from shipments of wheat to, and drafts upon, Butte & Albrecht, to-wit, to the extent of six hundred dollars [and that said six hundred dollars was the money of said Wernwag], then said ‘Teichman Commission Company ’ cannot recover as to such sum of six hundred, dollars, part of. said sum of one thousand and twenty-five dollars, in any event.”

This instruction, in effect, told the jury that, notwithstanding a portion of the money claimed by inter-pleader might have come through Butte & Albrecht; might have belonged to them, yet interpleader was entitled to recover. In other words, the only thing which could prevent interpleader from recovering would be to show that the property was Wernwag’s. The money might not have belonged to either Wernwag or interpleader; if to neither, interpleader could not recover. It does’not follow, under the branch of the evidence upon which this instruction is based, that if the money was not Wernwag’s, it was that of interpleader. The primary question in this case is, not whether the property is that of the defendant in the execution, but, rather, whether it is that of the interpleader. The interpleader must recover on the strength of his own right. He should not be permitted to recover merely because an execution has been levied on property not that of the defendant in the execution. If such be the fact it will only injure the owner of the property. It is no concern of interpleader’s.

The instruction should not fix the sum at six hundred dollars, for there is evidence tending to show that the sum which went into the account was three hundred dollars, one draft not being paid.

Aside from the foregoing, the instructions seem to have been properly passed upon by the court. The mere fact that some of those refused, for the bank, stated ■correct propositions, would not necessarily justify the •court in giving them when those given in the cause fully cover- the issues. The fourth, given for inter-pleader, might well be qualified by the words, “for such company,” after the words, “to purchase wheat,” in the fourth line of the instruction.

The judgment is reversed and the cause remanded.

"Philips, P. J., concurs. Hall, J., absent.