St. Charles Savings Bank v. Orthwein Investment Co.

CAULFIELD, J. (after slating the facts). — I. Defendant pleaded and still contends that the cause of action as to the money received on the draft dated May 29, 1902, for $900 was barred by the five years Statute of Limitations. This draft was not collected from the drawee bank until June 2, 1902. Until then the cause of action for money had and received did not accrue, and the period of limitation did not commence. The suit was brought within that period, or on May 31, 1907, and was therefore brought in time. II. The defendant next contends that the court erred in peremptorily instructing the jury to find for the plaintiff, and asserts that the defendant was entitled to have the jury determine the credibility of the testimony offered, though offering nothing to contradict it. There can be no doubt that the rule thus sought to be invoked is sound and well established. [379] [Gannon v. Gas Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907; Barker v. Lewis Publishing Co., 152 Mo. App. 706, 722, 131 S. W. 924, 929.] But it is not to be applied so as to convict the trial court of error in directing a verdict for the plaintiff where the statements and attitude of the defendant during the progress of the trial, clearly indicated that it was not seriously disputing the existence of any of the facts essential to plaintiff’s recovery. The trial court may assume such apparently uncontroverted facts for the purpose of instructing the jury. [Davidson v. Transit Co., 211 Mo. 320, 360, 109 S. W. 583.] Applying this test to the record before us, we are satisfied that defendant did not seriously dispute that the drafts were received and collected by defendant and their proceeds applied by it to the credit of' the cashier’s account in purely personal and speculative transactions. As the drafts were drawn by Mispagel as cashier in favor of the defendant against the account of the plaintiff bank, they disclosed on their face, to one having the knowledge defendant possessed, that Mispagel was exercising his authority as cashier or agent in favor of himself as principal. They were then presumptively void and the obtention by the defendant of the money on them presumptively illegal, and the burden was on the defendant to overthrow such presumption. [Mercantile Mut. Ins. Co. v. Hope Ins. Co., 8 Mo. App. 408; Lee v. Smith, 84 Mo. 304.] The court did right, then, in directing a verdict for plaintiff, unless the facts of which proof was tendered by the defendant were sufficient to sustain such burden. These we have considered and found insufficient. No implied authority in the cashier to issue drafts for his own benefit could arise from the general course of business in the bank (Lee v. Smith, 84 Mo. 304, 310); nor could the bank become bound by the cashier’s acts in issuing such drafts, because of the careless trustfulness of the directors, or of their neg [380] lect of duty (Kitchens v. Teasdale Com. Co., 105 Mo. App. 463, 468, 79 S. W. 1177); nor by their having sanctioned the issuance by Mm of other drafts than those in question. [Mercantile Mutual Ins. Co. v. Hope Ins. Co., 8 Mo. App. 408.] “There cannot be a course of dealing in reference to illegal acts; and prior consent or subsequent ratification, to waive the illegality, necessarily implies anticipation or knowledge of the facts of the particular transaction.” [Mercantile Mut. Ins. Co. v. Hope Ins. Co., supra.] Nor was it sufficient that the cashier “was authorized to sign drafts on its (plaintiff’s) correspondents, . . • . on his own account. ’ ’ So abhorrent to the law is the idea that an agent, as such, may deal with himself as principal, that if prior consent of the principal be relied upon, it must be shown to have been consent to do the particular act, under the circumstances, and in all respects, as it was done by the agent. Such prior consent, to waive the illegality, necessarily implies anticipation or knowledge of the. facts of the particular transaction. [Mercantile Ins. Co. v. Hope Ins. Co., 8 Mo. App. 408.] The alleged authority of which proof was tendered did not measure up to that standard. At best it would be construed to authorize the cashier to issue drafts on Ms own account upon the usual and very proper condition that the bank be first paid therefor. It did not contemplate the issuance of the drafts before us under any circumstance disclosed by the evidence. III. We are further of the opinion that the proof offered that after the defendant received and collected the money on the drafts it either expended the money as Mispagel’s agent or turned it over to its (defendant’s) New York principal is insufficient to exonerate the defendant from liability herein. The test in this case is whether in equity and good conscience, in view of the special facts of the casé, defendant was entitled [381] to retain tlie money as against tlie plaintiff. In order to defeat plaintiff’s suit, defendant must liave shown a right, in itself or in its alleged.principals, at least equal to the right of plaintiff. [27 Cye. 874.] This it failed to do, as neither it, nor Mispagel nor the New York concern had any right whatever to this money as against the plaintiff. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.