Jefferson Bank v. Merchants Refrigrating Co.

BROWN, J. Action against drawer of dishonored bank check. From a judgment for plaintiff, defendant appeals. On July 15, 1904, plaintiff was a banking corporation in the city of St. Louis, Missouri; defendant was a business corporation of Kansas City, Missouri; and a third corporation, the Mound City Produce Company, was a business corporation of St. Louis, Missouri. On the last mentioned date, defendant issued and mailed to the Mound City Produce Company a negotiable bank check for the sum of $1491.25, payable by the National Bank of Commerce, Kansas City, Missouri. This check was received by the Produce Company on July 16, 1904. July 17th fell on Sunday; and on July 18, 1904, said Produce Company transferred this check, by unrestricted indorsement, to the — 412 — plaintiff, and deposited same in the plaintiff bank, together with other checks and items, amounting to more than $10,000. On the same day, said Produce Company drew its checks on the plaintiff bank to an amount exceeding all of its deposits, including the check above mentioned; which checks were on that day honored and paid by the plaintiff bank. The check so issued by defendant was forwarded by plaintiff to Kansas-City on said 18th day of July, 1904; but on July 19, 1904, and before said check could be presented for payment by the agent of the plaintiff bank, defendant directed the National Bank of Commerce to refuse payment on the same; which was accordingly done, and the check protested for non-payment. Whereupon, plaintiff sued defendant for the amount of the check, alleging that it became- the purchaser thereof for value. Defendant resisted payment of the check on the following grounds: (1) . That is was never at any time indebted to the Mound City Produce Company in any sum whatever ; and that the issuance and delivery of said check to said Produce Company was a mere oversight or mistake of the defendant, and therefore the check was issued without consideration. (2) . That plaintiff is not the purchaser of said check for value. (3) . That plaintiff is not the real party in interest in this cause. (4) . That said check was only indorsed to plaintiff for collection; that the real title to said check was retained by the Produce Company. Defendant asks a reversal of the judgment for the reason that the trial court committed error in refusing to quash the panel of the petit jury which tried this cause, on the ground that the law which makes the judges of the circuit court of Jackson County, jury — 413 — commissioners, is in violation of section 8, article 14, of the Constitution of Missouri. Defendant also complains that the trial court committed reversible error in allowing plaintiff to read in its behalf a deposition taken by defendant; and to refer to said deposition as the evidence of one of defendant’s witnesses. Defendant further complains of the instructions given on behalf of plaintiff, and the refusal of the court to give certain instructions asked by defendant; but the conclusions we have reached in this cause will render it unnecessary to consider whether or not these instructions were in proper form. The only evidence in any way tending to support defendant’s answer was a printed indorsement on the cover of the deposit book of the Produce Company, containing these words: “This bank in receiving-out of town checks and other collections, acts only as your agent; and does not assume any responsibility beyond •due diligence on its part, the same as on its own paper. Jefferson Bank;” together with a letter written by plaintiff bank, transmitting the check to the National Bank of Commerce, of Kansas City, which is in the following words: ■“National Bank of Commerce, 'Kansas City, Missouri. “Dear Sirs: “I enclose for collection and return items stated below. “Yours respectfully, “W. E. Berger, Cashier.” Defendant neither proved nor offered to prove that plaintiff bank had any notice that the check had been issued by mistake or without consideration before it received said check and allowed the Produce Company to collect the amount thereof through checks issued on the plaintiff bank. — 414 — I. The Act of 1905 (Sec. 7319, R. S. 1909) which constitutes the judges of the circuit court of Jackson county and the judge of the court in that county having jurisdiction in felony cases, a board of jury commissioners, is not subject to attack on the grounds assigned by the defendant, to-wit: that it increases the salary of said judges during the terms for which they Avere elected. This law casts upon such judges the duty of selecting and draAving juries to try cases pending before them and provides a special salary for such serAdces. Whether such judges receive an increase of salary contrary to section 8 of article 14 of our Constitution, for services rendered as such board of jury commissioners, does not in the least affect the validity of their acts as such jury comissioners. When the law requires a specific service to be performed by a public officer, he must perform that serAdce regardless of whether any provision has been made to pay him for same. [Williams v. Chariton County, 85 Mo. 645; State ex rel. v. Wofford, 116 Mo. 220; State ex rel. v. Brown, 146 Mo. 401.] The compensation of judges of trial courts is regulated by statute, and if that part of section 7319, Revised Statutes 1909, which gives to such judges a special salary of $1500 each per year for acting as jury commissioners is invalid, then said section stands as though said judges had been required to perform those duties without compensation; and their acts in drawing and selecting jurors could not be challenged. Their right to collect such special salary is not before us, and we express no opinion on that point. II. The contention of defendant that the trial-court erred in allowing plaintiff to read the deposition of a witness taken on the part of defendant, and in allowing plaintiff’s attorney to refer to said deposition as having been taken by defendant, must be overruled. Plaintiff had the right to read said deposition.. — 415 — [McClintock v. Curd, 32 Mo. 411; Watson v. Race, 46 Mo. App. 546.] The mere reading of the deposition itself disclosed the fact that it was taken on behalf of the defendant. The remark of plaintiff’s attorney was merely a truthful recital, or description of the document he was about to read, and affords no ground of complaint on the part of defendant. III. We find it unnecessary to discuss the instructions given in this case, because on the admissions of the parties and the undisputed facts as proven, the plaintiff was entitled to an instruction directing the jury to return a verdict in its favor. We are not able to see how defendant could be entitled to submit to the jury the issue of whether or not the check was indorsed to the plaintiff for collection; because the evidence is uncontroverted that plaintiff allowed the Produce Company to draw out the whole amount of the check so deposited, on the very day of said deposit; and this constituted the plaintiff a purchaser of said check for value. This conclusion is also sustained by the course of dealing between plaintiff and the Produce Company, from which it appears that on every business day between the 1st and 18th of July, 1904, the said Produce Company deposited checks in the plaintiff bank, and was allowed by plaintiff to check out the amounts so deposited on the very days the deposits were made. In view of this course of dealing, we are warranted in holding that the indorsement printed on the cover of the deposit book of the Produce Company, to the effect that plaintiff only received out-of-town checks subject to collection, had been waived by plaintiff bank; a right it unquestionably had. The question of whether ór not a check is received for collection or is purchased outright by a banker usually arises where the indorsements on the check are of a restrictive nature; such, for instance, as where the indorsement shows that it — 416 — is merely made for the purpose of collection. However, in this case the indorsement was general, and upon the hneontroverted facts proven, constituted the plaintiff a purchaser for value without notice that the check was issued without consideration. [5 Cyc. 498; Ayres v. Farmers and Merchants Bank, 79 Mo. 421; Kavanaugh v. Bank, 59 Mo. App. 540.] We do not consider the fact that plaintiff wrote a letter to the Kansas City Bank stating, that it inclosed this check for collection as any evidence that it held such check only for collection. The same kind of letter would have been written if plaintiff had been the owner of the check; so that letter has no probative effect as indicating that the plaintiff was the mere agent of the Produce Company for collection of the check. Neither is the fact that the plaintiff demanded of the Produce Company that it pay the check, any evidence that plaintiff was not the owner thereof. Plaintiff had a right to hold both the maker of the check and the indorser 'thereof for the amount it had paid. There was no reversible error committed in the trial; the judgment is for the right party; and it is therefore affirmed; Kennisb, P. J., concurs; Ferriss, J.,absent.