Southwest National Bank v. House

ELLISON, J.

This action is based on a bank check charged to have been drawn by defendant’s and purchased by plaintiff, a bank in Kansas City. A trial-was bad by tbe court without the aid of a jury and judgment rendered for defendants.

Tbe check, dated January 13, 1910, for tbe sum of $5240, was drawn by E. J. House & Co. on tbe Western Exchange Bank, also in Kansas City, payable to tbe order of tbe Dixie Grain Co., and was indorsed in blank to plaintiff. The Dixie Grain Company was tbe trade name of E. S. Carr, and we shall use bis name. It appeared in evidence that Carr bad opened an account with plaintiff bank only nine days previous to .the date of this check; that on tbe morning of January *200 13th, he had a balance in his favor in plaintiff bank of. $2009.50. That morning the bank received a sight draft drawn on the Dixie Grain Company for $1040. Carr paid it that morning by giving the bank a check for that amount on his account, leaving a balance of acount in his favor of $969.50. Afterwards, on the same morning, Carr deposited the check in controversy, for-$5240, in the deposit window of plaintiff bank, the teller entering it on his pass book. Carr then went immediately over to the paying telller’s window and presented his check for $1610, payable to himself, and the teller paid him the cash, and he absconded. Plaintiff bank then sent the check for $5240 to the Western Exchange Bank to be certified by the latter, but certification was refused. So, without counting this last check, when the bank paid Carr the $1610, it paid him $640 more than he had; and the latter amount is really all it seeks to recover.

The evidence tended clearly to show that the check ■was fraudulently obtained from defendants by Carr, and that they ought not to pay it unless plaintiff is an innocent purchaser for value in the usual course of business. As the court found for defendants, we have only to inquire whether there was any substantial evidence, or whether there is any substantial and reasonable inference to be drawn from the evidence, tending to justify the court in holding that plaintiff had not shown that it purchased the check in good faith in the usual course of such business.

It has already been shown that the plaintiff bank did not part with the money when it took in the check in suit.. Its claim is that by taking the check and giving Carr credit therefor it became a purchaser and ■that Carr’s being able immediately' to draw out $1610 ■was partly on the faith of that check. It was shown •by plaintiff’s officers, witnesses in its behalf, that when checks of any large am'ount drawn on another bank in the city, like ■ the one in controversy, is- presented, it *201 is always sent to that hank to see that it is good and to have it certified; and that was done in this case within fifteen minutes of its receipt by plaintiff. But the misfortune was that plaintiff allowed Carr to draw on it before it learned the result of the inquiry. It is true that these witnesses said it did not follow that because such checks were sent to the banks upon which they were drawn, ot be certified, that they, as officers, should not pay out money on the deposit be- ■ fore getting a response to the request for certification. Bnt the court was not obliged to believe that, for it is difficult to understand the object of inquiry if the check was to be looked upon as cash before the inquiry is made. Besides, the witnesses stated that the object of sending it for certification was “to see if it was good.” That this was done “to protect the bank.” Furthermore, it was shown that this check, with the deposit slip, was not turned over to the bookkeeper, but was delivered to the “collection teller” to be sent for certification and it never was entered by the bookkeeper as a credit, though, as already stated, plaintiff allowed Carr immediately to draw cash on it. Plaintiff cites us to Bank v. Refrigerating Co., 236 Mo. '407. Defendants do not dispute the soundness of the law therein declared, hut insist it has no application ■to the facts of this case, and in that we agree with them.

In our opinion these facts, and inferences therefrom, will sustain the court in finding that plaintiff’s ' alleged purchase of the check (if completed at all) was not in the usual course in such business; that is to say, that plaintiff had not taken the check in good faith, as its own, at the time it paid Carr the $1610. At that time it had not yet learned from its inquiry, made “to protect the hank,” whether the cheek was “good,” and it had not passed it over for entry of credit on its books, and never did do so. Carr’s title ■to the check was defective (Secs-. 10025, 10027, R. S. *202 1909) and the harden was on plaintiff to show that at the time it met with the loss, it had acquired the check in due course, and we think there is evidence tending to support the court’s finding that it did not do so.

There is this further consideration which denies plaintiff a right of recovery: It claims that it paid for the check by receiving it as a cash deposit. That is to say, in payment for the check it gave Carr credit for that much money and became liable to him for that amount. It is, of course, the law, that the property in a check vests in the banker only when he has become responsible for the amount to- the depositor. [St. Louis, etc., Ry. Co. v. Johnston, 133 U. S. 566, 575 .]

Now what was shown concerning the relationship between plaintiff and Carr at the time of this transaction? There is no evidence whatever of any agreement between them that Carr should have the right to deposit checks on other banks and draw against them before collection. Neither was there any evU dence that a course of dealing had grown up beiween them. In fact, as was stated above, Carr had only opened an account with plaintiff a few days before. These considerations, connected with the fact that the check was withheld from entry of credit on the books of the' bank and was turned over to the collection teller to be sent to the bank upon which it was drawn “to protect the bank” by ascertaining “if it was good,” is evidence of the most persuasive character that plaintiff did not consider it had become absolutely responsible to Carr for the amount of the check, and had not concluded a purchase of the note. Is it not clear that plaintiff on receiving word that the check was not good, did not at that time consider that it had bought it of Carr?

It is true that entry of a deposit in a depositor’s 1 pass book is evidence of a deposit of the amount, subject to be checked upon, but it is only prima facie evidence and' is open to explanation as is a receipt. *203 [Quattrochi Bros. v. Bank, 89 Mo. App. 500 .] Such entry by no means concluded the trial court in passing on the facts; it was only to be considered in connection with the other facts and circumstances in the case.

It is well to state that no declarations of law were asked by either party and we have simply to answer whether there is any substantial evidence, with reasonable inferences to be drawn therefrom, supporting the finding; and having concluded there is, we have only to affirm the judgment.

All concur.