176 Mo. App. 73 | Mo. Ct. App. | 1914
The petition alleges that “on or ¿bout the 15th of October, 1912, defendant received from the Shippers' Live Stock Commission Company of National Stockyards, Illinois, the sum of $1245.48, belonging to plaintiff, that on October 21, 1912, plaintiff demanded payment to him of said sum on or before October 25th, 1912; that defendant has failed and refused and still fails and refuses to pay over said sum or any part thereof to plaintiff. ’ ’
The defense is that defendant bank received the money from the Commission Company as a deposit to the credit of G. C. Wilson, a brother of plaintiff and applied it in payment of an indebtedness of the depositor. A trial in the circuit court resulted in a verdict and judgment for plaintiff. The principal contention of counsel for defendant is that the demurrer to the evidence should have been sustained.
The pertinent facts of the case are as follows: Wood Wilson (plaintiff) and his brother Grover (G. C. Wilson) formerly were partners in the business of buying and shipping hogs but had dissolved partner.ship and plaintiff had engaged in the real estate business. Grover continued as a hog buyer and shipper
We have stated and are considering the facts from the point of view of plaintiff’s evidence as we must in solving the question of whether or not that evidence presented issues for the triers of fact to determine.
A general deposit in a bank made by, or for the account of, a depositor, creates the relationship! of debtor and creditor between the bank and the depositor and there can be no question of the right of the bank to apply such deposit in payment of an indebtedness of the depositor to the bank without his consent. And further the rule is well settled that money has no earmarks but “passes and may be received from hand to hand without inquiry as to anybody’s claim thereto by all who have no notice of its origin.” [Bank v. Bank, 102 Mo. App. 357.]
In the case just cited the deposit consisted of money realized by the depositor from cattle he had converted to his own use. In an action by the owner of the cattle against the bank we held that the status of creditor and debtor had been created between the depositor and the bank and that the latter, having no knowledge of any infirmity in its customer’s title to the money, was entitled to apply the deposit in extinguishment of a demand it held against him. And so we would hold in this case if the deposit made by the Commission Company for the benefit of Grover had been made with his consent, or had received his implied approval after
But the weakness of defendant’s position in this ease is that the status of banker and depositor and its twin relationship of debtor and creditor were not established between it and its debtor, Grover Wilson. He had no intention of converting the hogs or their proceeds to his own use nor even of shipping them in his name as consignor. By his mistake in supposing that the car would be rebilled from New Bloomfield, apparent authority was given to the Commission Company to deposit the proceeds of the hogs to his credit, but it must be borne in mind that the relation of banker and depositor is contractual and cannot be created except by mutual consent. It is indispensable to the creation of a lawful contract that the minds of the parties shall meet in mutual understanding and agreement.
The case before ns cannot be distinguished from that of Mingus v. Bank, 136 Mo. App. 407, recently decided by this court. Speaking of a like mistake we said in that case: “Windle’did not make or authorize the deposit with defendant. It was the result of a mistake, which both Windle and plaintiff asked the cashier to correct. . . The defendant, having obtained possession of the funds by mistake and not for value, cannot be said to- have any equitable claim to such funds. In other words, its hands are not clean. No injustice is done defendant in compelling it to surrender the deposit, as it parted with nothing in the transaction.”
The demurrer to the evidence was properly overruled.