97 Mo. App. 576 | Mo. Ct. App. | 1903
— The facts disclosed by the record in this case may be chronologically and briefly stated in about this way, viz.: William A. Lynam, a cattle-trader residing in the northern part of this State, made to Scannel & Patterson his note for $866, to secure which he executed a chattel mortgage in which the property covered by it was described in this way: ‘ ‘ Twenty head of one-year-old steers, color red, one black steer calf, one white steer calf, twenty-six head of steers coming two years old, all red.” And to Seannell, Foster & Co. said Lynam made a further note for $1,050, to secure which latter he executed a further mortgage in which the property is described as “fifteen reds and roans, one white and four blacks, also twenty-seven head of one-year-old steers, reds and roans.” It was provided in each of said mortgages that in case of an attempt to remove the cattle from either Sullivan or Mercer counties the payeees in the notes or their legal representatives might take possession of the cattle, etc.
Before the maturity of said notes the payees therein named indorsed and delivered the same, so that they passed into other hands until one Holmes became the legal holder thereof, and after maturity he insisted on payment. Lynam not being able or willing to then make payment, he and-the payees applied to the plaintiff herein to carry the same and they accordingly procured the possession of the notes and mortgages from Holmes and entered into negotiations with plaintiff in respect thereto, resulting in Lynam with one Cook executing to plaintiff their joint note for $2,060 with an agreement to transfer to him the mortgage notes as collateral security thereto, and accordingly the payees in the latter
It appears from the testimony of Holmes, given at the trial, that he never authorized the payees of Lynam to sell or dispose of the notes. The payees and Lynam paid over to Holmes on the notes the check and money they had received of plaintiff. Holmes testified without objection that the payees assured him that they were to get the money of plaintiff on the note of Lynam and Cook. He further testified that shortly after the mortgage notes were returned to him, and the $1,500 obtained of plaintiff was paid to him, that he told the payees that if Lynam would let him ship the cattle to Kansas City and there sell them and if there was anything over after the payment of the balance due on the mortgage notes that he would pay it to him; and that the latter requested that he wait until a couple of days later and he would ship the cattle and accompany him (Holmes) to Kansas City. This was agreed to and Holmes and Lynam two days afterward went with forty-one head of cattle to Kansas City where the same were sold. Out of the proceeds of the sale Holmes was paid the amount still due on the mortgage notes and the balance of $1,218.54 was deposited in a Kansas City bank to the credit of the defendant, the Princeton bank. The mortgage notes were delivered to Lynam marked paid.
It appears that Stiles and Miller were sureties on a note of Lynam to Squires for $2,500. On October 1, 1900, the day after the sale of the cattle, Lynam gave his sureties a check on the defendant bank for $1,218.54, payable to “G-. W. Squires or bearer.” On the next day Stiles presented the check to the bank with a request that the amount be placed to the credit of Squires’
It appears that the cattle were shipped in the name of the defendant hank, but whether with its knowledge >or approval does not clearly appear. It seems, however, that the Kansas City bank promptly notified the defendant bank of the deposit with it. It does not appear further than by inference, how the defendant bank became apprised that the deposit was to go to the credit of Lynam’s account. Whether this fact was learned from the Kansas City bank or from Lynam, or otherwise, was not shown. There is no question but that the amount so deposited was the proceeds arising from the sale of part of the cattle by Holmes, or by Holmes and Lynam, and that it was placed to the credit of Lynam on the books of the defendant bank. Squires kept an account with the hank, hut at the time his account was credited with the amount of the Lynam check he was absent from the State and it does not appear that he was made aware of the credit until the date of his garnishment presently to be mentioned.
To reach the amount thus in the defendant bank the plaintiff brought a suit in equity against Lynam and the said hank. In his petition he alleged the execution of the notes and chattel mortgages, with a description of the cattle contained in the latter; the purchaser of the same, and that the defendants, Lynam and the bank, had converted the cattle to their own use and had sold the same with notice of the mortgage liens, realizing therefrom the said sum of $1,218.54, which was on deposit in the name of defendant Lynam in the defendant hank; and then prayed that said sum be ordered to be paid to him — plaintiff. A few days after this suit was brought, plaintiff brought two suits of attachment against Lynam; one on the two mortgage notes and the other on the $2,060 note of Lynam and Cook. Squires and defendant bank were summoned as garnishees in these attachment suits. 'By the pleadings in these several actions the issue was made as to whom the pro
It should have been previously stated that when Lynam delivered the check to Stiles and Miller, he directed that the amount of the check be paid to Squires on his note on which they were his sureties, or deposited to his (Squires’) credit in the defendant bank.
After the pleadings were all in and before the commencement of the trial, the court consolidated all three actions and thereupon the defendants and garnishee demanded a trial by jury. This was refused and the court proceeded to hear and determine the issues without the aid of a jury.
During the progress of the trial the plaintiff offered in evidence the two chattel mortgages, to the introduction of which the defendant and garnishees objected on the ground that the description in the said mortgages were insufficient, vague and indefinite, etc. The court overruled'these objections and admitted them.
The finding and judgment was for plaintiff and against the defendant and garnishee bank for the amount claimed, and the latter appealed.
I. Touching the first assignment of error in respect to the admission of the two mortgages in evidence, it is to be observed that the rule is now well established in this jurisdiction that a mortgage to be effectual must point out the subject-matter of it so that a third person by its aid, together with the aid of such inquiries as it suggests, may identify the property. Stonebraker v. Ford, 81 Mo. 532; Banking Co. v. Commission Co., 80 Mo. App. 443; Jones v. Long, 90 Mo. App. 8; Trimble v. Keet, 65 Mo. App. 174; Boeger v. Langerberg, 42 Mo. App. 7; Steinecke v. Uetz; 19 Mo. App. 145; Chandler v. West, 37 Mp. App. 631; Jennings v. Sparkman, 39 Mo. App. 663; Hughes v. Menefee, 29 Mo. App. 192; Estes v. Springer, 47 Mo. App. 99-104.
II. The vital question in the case is, whether or not the proceeds of the sale of the cattle at the time of the garnishment belonged to Lynam, for if so then the judgment of the court must be sustained. The theory of the plaintiff’s garnishment is that the fund so on deposit belonged to Lynam, so that at the time of the drawing of the check the same was subject thereto. The
If it be conceded, as it must, that the title to the fund was in Lynam, and that it was properly on deposit in the bank to his credit; then what was there to prevent the exercise by him of his right to make a bona fide disposition of the same? The relation of debtor and creditor existed between Lynam and the bank, and when the latter drew his check in favor of Squires or “bearer’' and the bank accepted the same by charging the amount thereof to the account of Lynam and crediting the same to the account of Squires this had the effect to put an end to the right and title of Lynam to the fund. It operated as an assignment. Albers v. Bank, 9 Mo. App. 59; Bank v. Latimer, 64 Mo. App. 321; Burns v. Kahn, 47 Mo. App. 215; Dickinson v. Coates, 79 Mo. 250; Shoe Co. v. Crosswhite, 124 Mo. 34; Building & Loan Assn. v. Bank, 126 Mo. 82. There was, independent of the negotiable quality of the check, ample evidence of a supporting consideration. Nor is there any question as to the bona tides of the transaction in respect to such check. When the bank accepted the check and charged the amount thereof to Lynam’s account, this discharged its indebtedness to Lynam as to the amount of the check. Whether the bank paid over the amount of the check so accepted to the bearers, Stiles and Miller, or by their direction entered the same as a credit on the account of Squires with it, was no concern of Lynam for his title in the fund had passed beyond recall. The bank had in consequence of the assignment ceased to be his debtor. The assignment thus made being, as has been stated, prior to the garnishments, it must be regarded as passing a superior right
In no view of the case which we have been able to take do we think that the plaintiff has any right to recover of the bank the amount of the fund, the proceeds of the sale of the cattle, in either or any of said actions and proceedings, and without noticing other points discussed in briefs of counsel, we shall reverse the judgment.