Deibel v. Jefferson Bank

BECKER, J. — This is an action by plaintiff, against defendant hank, as for money had and received. At the close of plaintiff’s case the defendant’s demurrer to the evidence was sustained and plaintiff took an involuntary nonsuit with leave to set same aside. From the action of the trial court in overruling plaintiff’s motion for a new trial, plaintiff brings this appeal. The plaintiff’s petition is in' three counts. First, that plaintiff loaned to the bank the sum of $2500, which the bank was thereafter to repay with interest. Second, that the defendant received $2500, which the defendant has retained for its own use .and benefit and which the defendant should repay to the plaintiff, together with interest. The third count alleged facts which in plaintiff’s view are tantamount to alleging that plaintiff, under duress, had paid into the bank the sum of $2500, but with the understanding, however, that if and when the bank’s profits should have amounted to a sum sufficient to enable it to repay the same it would repay to plaintiff the said amount, and that the bank’s financial condition had reached that point which did enable it to repay, but though -demand had been made, payment had been refused and therefore in equity and good conscience plaintiff should have judgment against the defendant for the sum in question. According to the testimony the defendant is a bank located in the city of St. Louis, in which city it appears no bank can exist without what is termed “clearinghouse facilities.” This “clearing” is done by and through the means of the Clearing House Association, of which the larger financial institutions of said city are members while the smaller ones which are not accepted as members are permitted to make their clearings through some bank which is a member of the association. The defendant bank was not a member of the association but had the privilege of clearing through a bank which held membership. — 549 — In April, 1909, the Clearing House Association, which had theretofore had considerable trouble in handling the clearings for defendant hank, became convinced that the surplus and capital of the defendant hank were impaired. The directors of the clearing house at short notice summoned the directors of the defendant hank to appear before them at an executive session. The plaintiff, an owner of 700 shares of the capital stock of the defendant hank, as one of its directors appeared before the clearing house committee, together with his associate directors of the defendant hank, with the exception of Mr. Blanke, a director, who was out of the city at the time. At this meeting the chairman of the clearing house committee announced to the assembled directors of the defendant bank that by reason of the defendant bank’s financial condition the clearing house would not clear for the hank the next day unless the directors of the bank agreed to put up $30,000 in cash immediately. An attempt by the president of the defendant bank to protest against this ultimatum was promptly declared out of order. An opportunity was then afforded the directors of the bank to retire to an adjoining room to discuss the situation. "When the directors of the hank had retired to the adjoining room they discussed the matter in groups of two or three and, according to the testimony, each of the directors present expressed himself to the effect that it would be necessary to acquiesce in the demand of the clearing house or the bank would be ruined. After discussing the matter at length the directors, with the exception of Mr. Berger, agreed to put up various sums which together would aggregate $20,000. Each of the directors thus agreeing to put up the money expressed his view that he expected that the hank should and would repay such sum as the directors put up when it would be in a position to do so. This proposition, that the directors of the bank pay in $20,000 instead of the $30,000 demanded, was put up to the clearing house committee and accepted. — 550 — The following day, April 28, 1909, there was a meeting of the board of directors of the hank at which a resolution was moved by Mr. Deibel, the plaintiff herein, and seconded by Mr. Blanke, another of the directors, and was carried. The resolution reads as follows: “That we charge off $27,000 of the surplus account and credit same to the profit and loss account.” At a meeting of the hoard of Didectors of the bank held on April 29, 1909, a resolution which had been prepared by the Clearing House Association, was sent to the bank for its adoption by the board of directors. This resolution was moved by Mr. Wall, one of the directors, and was seconded by Mr. Deibel, plaintiff herein, and was carried. Said resolution reads as follows: “St. Louis, Mo.. April 29, 1909. “Whereas, the St. Louis Clearing House Association have required the Jefferson Bank to charge off the .following notes: One note of Fred C. Meier for $4600, note of L. M. Hall for $1695.55, two notes of George H.. Pohlman aggregating $1306.50, one note of E. Hollenbeck for $177.88, note of Star Vending Machine Company for $2160, acceptance of Clement Guión for $2340, and a balance on a note of C. H. Duncan of $599.92, and also to reduce the book value of the real estate belonging to the bank and known as “The Chestnut Street Property” by $2434.57, and also to reduce the book value of the real estate known as “The De Hodiamont Property” by $4685.58, being a total of $20,000; and, “Whereas, certain directors of the bank have contributed the $20,000 to the assets of the bank necessary to make up the amount so to be reduced. Richard B. Bullock having contributed $3000. W. H. Steele $3000, Henry Wood $2500, Fred Deibel $2500, J. F. Conrad $2500, C. F. Blanke $2500, L. J. W. Wall $2500 and H. W. Kroeger $1500; and, “Whereas, it was understood and agreed that the parties contributing the said $20,000 should have the — 551 — full benefit of the amounts realized from the assets so charged off on the part of the bant; “Now, therefore, this is to certify that the Jefferson Bant will turn over to H. W. Kroeger as trustee any proceeds collected on the said note of Fred 0. Meier, the said note of L. M. Hall, the said notes of George H. Pohlman, the said note of E. Hollenbeck, the said note of Star Vending Machine Company, the said acceptance of Clement Guión, and on the note of C. H. Duncan after whatever amount due on said note, and which has heretofore been charged off, has been paid to the bank; or, in other words, all that is realized on the Duncan note against the $599.92 so charged off on said note and made good by said directors. It is also understood and agreed by the Jefferson Bank that should the bank realize out of- said Chestnut street real estate and said De Hodiamont real estate any of the $7120.15 charged off against the book value of said real estate, in the future, after reimbursing to the bank the full value of the real estate as the same is now carried by the bank, together with the interest thereon at 6 per cent, that then such of said $7120.15 as may he realized from said real estate shall also be paid to said Kroeger as trustee, it being understood that the bank is to hold the said notes in trust for the use and benefit of the said Kroeger as trustee for the parties contributing said $20,000.00 in the proportion that each party has contributed to said fund of $20,000.00. “If at any time the parties for whom said Kroeger is trustee should desire any of said notes to be transferred to said Kroeger, or to any other trustee selected by them, the bank is to make the transfer without recourse on it. “It is understood that should the said Kroeger die or be incapacitated to act, that then in that event the majority of the parties contributing to said $20,000 fund may select some other such person to act as trustee; and, upon notifying the bank of such selection, such — 552 — party shall have the same right that the said Kroeger has under this agreement. JBKKERSON Bahk, By .Richard D. Bullock, President.” There is testimony that the several directors of the hank who participated in putting up the $20,000 were not informed at the original meeting with the clearing house committee that various notes, etc., which were held by the hank and listed in its assets, hut which were at least of doubtful value,'were to he charged off and turned over to some one as trustee for those of the directors of the hank who. put up the $20,000, for their use and benefit. Another resolution adopted by the directors of the hank is found in their minutes, of the meeting of May 5, 1909. On motion of Mr. Wall, and seconded by Mr. Deibel, the plaintiff herein, it was resolved, “to adopt the resolution hereto attached regarding the transfer of notes, etc., to directors for the amount of $20,000 paid by said directors. Motion carried.” (Italics ours) It appears.that these various assets were in point of fact turned over to Kroeger, as trustee, and that on July 8, 1910, the plaintiff received and accepted $75 from Kroeger as trustee, as a pro rata payment out of moneys collected from the assets held by said Kroeger as trustee, and that on November 15, 1913, the plaintiff received and accepted from Kroeger as trustee, a further payment of $24.57, each of which payments were made by check, payable to plaintiff, the first signed, “H. W. Kroeger, trustee,” the second signed, “PI. W. Kroeger, trustee for directors.” At the time the clearing house insisted on the payment ofi the $20,000 the plaintiff was indebted to the bank personally in sums aggregating $29,000 and was contingently liable to the bank, as endorser of notes of companies in which he was interested, aggregating $30,000, more. No credit entry of any kind was ever entered on the books of the bank in favor of the plaintiff or his — 553 — associate directors, or any of them, for the $20,000 they paid into the hank, the only formal action with reference thereto being that of the resolutions passed by the board of directors as above set ont. The plaintiff continued to be a member of the board of directors of the bank until 1911, at which time he failed of -reelection. From 1911 on it appears that plaintiff at diverse times made sales of some of his holdings of stock in the bank until in February, 1914, a.few months prior to the entering of this suit, plaintiff had finally disposed of all of the stock he had held in the bank. ■' The. plaintiff testified that he had on several occasions made demand on the bank for the repayment of the $2500 that he had put into the bank; that he made such demand in 1909, 1910, and 1911; that the last time he made demand was in November or December, 1913, at a time when he had reduced his own obligations to the bank to $2500; that he spoke to Mr. Moberley, the then cashier of the bank and told him that he, Deibel, the plaintiff herein, was ready to pay the balance of $2500 that he owed the bank provided the bank would repay the $2500 which he had advanced to the bank; that Moberley answered that he didn’t have any authority to make such a payment and that he could not pay him the $2500; that at the suggestion of Moberley he went to see Mr. Meissner, the president of the-bank, to whom he made the same proposition that he had made to Moberley, but that Meissner replied that he didn’t know anything about it and that the bank could not pay him the $2500. Plaintiff at no time offered to return the payments he had received from Kroeger, as trustee, nor did he offer to retransfer to the bank his interest -in the notes, etc., held by Kroeger, as trustee. Thereafter, in March, 1914, plaintiff filed suit. Upon a hearing, at the close of plaintiff’s case, plaintiff took an involuntary nonsuit with leave to set the same aside, and, as stated above, in due course plaintiff filed his — 554 — motion for new trial, which was thereafter overruled, and plaintiff took an appeal to this court. We are met at the outset with the contention that the trial court erred in giving the instruction in the nature of a demurrer to the plaintiff’s evidence, and instructing the jury at the close of plaintiff’s case that under the pleadings and the evidence the verdict of the jury must be for the defendant. It is argued that the testimony in the case shows that the money advanced by the plaintiff and certain other directors was not a voluntary gift but a loan to the defendant bank and was to be repaid as soon as the bank was in a condition to do so, and that the evidence further shows that the crisis which made it necessary for the $20,000 to have been advanced had passed and that the bank, prior to the institution of this suit was in such condition as warranted the repayment of this money; and it is contended that from these facts the law implies a promise to repay, a promise which need not be express, but a promise which will be inferred from the facts surrounding the case, and particularly so in such a case as this— an action for money had and received — an action so flexible in form and relief that it levies tribute indifferently on equitable as well as strictly legal principles. To this view of learned counsel for appellant we cannot accede. For while the evidence adduced shows that the plaintiff, together with certain of his associate directors, did pay to the bank sums aggregating $20,000, upon the.imperative demand of the cleáring house that such action be taken immediately or the privilege of clearing through it would be denied the bank, yet there was no formal action on the part of the board of directors of the bank agreeing to repay this money if or when the bank should have earned it. All the testimony on this point was merely to the effect that there was.talk among the directors, as individuals, that the bank should and would repay the money thus advanced by the said several directors when it was able to do so. For ex-' ample, Fred Deibel, the plaintiff, himself testified on this point: “Well, I made my statement, in saying that — 555 — I would put up the money, provided that it would he returned to me. I considered it was a loan at the time; that I would not put up otherwise unless it was returned.” . . . “Other members stated the same— made the same statement.” And referring to a directors’ meeting held on the 28th of April, 1909, he said: “Yes, before we were called together we discussed the matter about the money, how we were going to get it back.” . . . “When the meeting was called to order we talked of the matter of what happened the day before, and we talked amongst ourselves and the board about how we were to get this money back. One stated whether the bank was going to give us its note for this money — another director stated — or an officer stated . I think some one else stated that we couldn’t— we had to take this paper and charge it against this twenty thousand dollars that the clearing house had marked off and sent up a list. So there was nothing else for us to do, and after it was discussed and — over that we had to accept what they handed us.” (Italics ours) “Mr. Bullock . . . stated, .that we would get this money back — that is as soon as the bank .made it.” ‘‘But no action was taken as such by the board of directors on this matterf A. No formal action because that would have defeated the very thing the clearing house insisted upon.” (Italics ours). J. F. Conrad, a witness for plaintiff, on this point, testified: “I don’t remember particularly who said anything but all of us expressed the opinion that it was in our own hands; we were paying this money to ourselves ■and we would probably be paid back just as soon as we had some more surplus; (Italics ours) as soon as we had some money.” . . . “Well, we were all in the same boat and as soon as we made money to pay it back to ourselves again.” In answer to the questions: “And all these talks that you had among yourselves was simply general talk between the members of the board? A. Between the people who put up. Q. By the people who put up the money? A. They were then in control of the bank. Q. They would talk among themselves — 556 — what the- situation was? A'. As soon as we make money we will .pay that back to ourselves. Q. That was your personal expression or view? A. Amongst all of us. Q. Just talk at that time, personal expression? A. Yes, sir; we agreed on that. Q. Never any note was given to you gentlemen for the twenty thousand dollars? A. No; that would have defeated the purpose of the clearing house. Q. .The very purpose of it then teas to increase the cossets without increasing the liabilities correspondingly, wasn’t it? A. Well, I suppose that ivas the way.- (Italics ours) That was the pull on ns to pay in this money'. We didn’t do it voluntarily; we were compelled to do it. The bank would have went by the board and all our friends would have suffered. Q. And- for that reason you acted as'you did? A. Yes, sir.’ ’ Cyrus F. Blanke, a witness for plaintiff, testified that he was a director but wns not present at the meeting when the directors appeared before the clearing house, but that when he attended the meeting of the board of directors of the bank a day or two later he was informed of what had occurred and was told that they counted on him to raise $2500 of the $20,000 agreed to be put up, and that he told them he w'ould do his share; that he put up the $2500 and that this $2500 was to be repaid Mm and to the other directors just as soon as the bank’made it. “Q. Who said it would be paid back to you? A. Mr. Bullock.” . . . “Q. But no-where on the books of the company, so far as you know, was this $20,000, or any part of it, carried as a liability of the bank? A. No, sir; it was distinctly understood that it was not to be carried -as a liability.” (Italics ours). While we have this testimony of. the several witnesses- regarding what they understood and what was talked about amongst themselves relative to the repayment of the $20,000, it is uncontradicted that at the meeting of the board of directors on April 29, 1909, the resolution set out, in full in the statement of facts herein, offered by Mr. Wall and seconded by Mr. Deibel, plain — 557 — tiff herein, was formally adopted by the board, and formally carried ont by resolution of the board on May 5, 1909. Plaintiff admits that in conformity with said resolutions the various items set out therein were in point of fact turned over to H. W. Kroeger, as trustee, and that on July 8, 1910, the plaintiff accepted from the said H. W. Kroeger, trustee, a check in the sum of $75.00, which check he cashed and retained the money obtained thereon, and that again on November 15, 1913, he accepted a check from said Kroeger, as trustee in the sum of $24.57, said money in each instance being his pro rata share' of the funds on hand that had been collected by the said Kroeger as trustee, on the several notes, etc., in his hands, under the resolution of April 29, 1909; and furthermore, though plaintiff testified that he had several times demanded payment of the bank, yet up to the time of trial plaintiff had made no effort to have whatever items remained in the hands of Kroeger, trustee, tendered back to the bank. Under these facts the learned trial judge, in our view, could not have done otherwise than have sustained the defendant’s demurrer at the close of plaintiff’s case. First, there was consideration for the payment made by plaintiff to the bank. The undisputed- evidence shows that at the time the payment was made the bank’s surplus, as well as part of the capital, in the judgment of the credit house clearing association, was impaired, and that unless the $20,000 had been immediately added to the assets of the bank the right to clear through the association would have been denied the bank, with the result that the bank would have had. to close its doors. The plaintiff at that time was the holder of 700 shares of the capital stock of the bank, the value of which, had the bank been forced to suspend operation, would have been greatly lessened and thereby plaintiff would have suffered a considerable loss in the value of his stock. Furthermore, plaintiff then owed the bank on his own account $29,000 and was endorser on additional notes aggregating $30,000 for companies in which he was interested. These various loans would necessarily — 558 — have been called in for payment had the bank been forced to close. -But by reason of the paying in of the $20,000 the bank continued to do business and some time before this suit was brought plaintiff was enabled to dispose of bis shares of stock in the bank, and it is a fair presumption, from the- record, that plaintiff sold bis stock for a greater price by reason of the bank continuing as a going concern, showing, as it did, a considerable sum in it's statement as surplus and undivided profits, than be would have gotten for bis stock bad the bank been forced to liquidate by reason of the clearing bouse refusing it the privilege to clear through it. All of these were matters which went to make up the consideration for the part of the $20,000 put into the bank by plaintiff, in additipn to the notes, etc., which by resolution, seconded by and voted for by plaintiff, the bank turned over to Kroeger, as trustee, notes, etc., aggregating in face value $20,000 or more for plaintiff’s and bis associate directors’ use and benefit and from which he received and retained two partial payments, one of which was accepted four and one-half years after the date on which the $20,000 had been put into the bank. We hold that there was sufficient consideration to'support the transaction. It is argued, however, by learned counsel for appellant, that the directors of a corporation, in an action such as this, must be. considered trustees for the stockholders of the corporation and as such entitled to. be indemnified against liabilities incurred or moneys advanced by them as directors for the benefit of the corporation, on the theory that the cestuis que trust are liable to their trustees for any liability incurred or moneys advanced relating to the trust. Whether the plaintiff could have recovered had the directors, pursuant to the demand of the clearing house, merely deposited $20,000 to the credit of the bank and nothing further, is a question which under the facts in this case is not before us'. Here the admitted facts show a resolution of the board of directors of the bank, seconded by and voted for by plaintiff, whereby in consideration of the — 559 — payment of the $20,000 to the hank, the hank transferred to a trustee for the use and benefit of the plaintiff and his associate directors, certain notes, etc., which proposition was accepted by the plaintiff and his said associate directors and plaintiff’s pro rata share of the moneys which this trustee collected from the securities in his hands was voluntarily and without objection accepted by this plaintiff over four years after the $20,000 had been paid in to the hank. And while on this point it is to he remembered that according to the record the hank, in January, 1910, had a surplus of $13,550 and an undivided profit of $7055.56, totaling assets of $20,605.56 over and above the capital of the hank, which would have admitted of the hank paying back the $20,000 paid in by the plaintiff and his associate directors, and still have left the hank’s assets $605.56 over and above its capital, yet in July of that same year the plaintiff accepted $75.00 as a part payment out of the funds held by Kroeger as trustee, and again, over four and one-half years later, in 1913, plaintiff accepted $24.57 from Kroeger as trustee. The facts are not component •with the contention of the learned counsel for appellant and we rule this point against appellant. Duress is next urged by appellant. It will be noted that the duress, if any, must he chargeable against the credit Clearing House Association and not against the defendant bank. But discussion of this phase of the question is not necessary in our view of the case, for as was stated in Wood v. Telephone Co., 223 Mo. 537, l. c. 564, 123 S. W. 6, “a contract procured by duress is not void but only voidable. If the party elects to repudiate it, he must do so within a reasonable time after the duress has been removed,” (See also Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257) and the plaintiff might well be denied his claim on that ground alone. But beyond that the question of duress is not the controlling factor in this case in that the cancelled checks, one for $75 and the other for $24.57, which were introduced in evidence, were made out in plaintiff’s name and bore his endorsements, and were admitted by plaintiff — 560 — as having been cashed by him, were payments from Kroeger, trustee, from collections made by him out of the several items turned over to him for the benefit of the several directors who put up the $20,000, and'these acts of acceptance on the part of plaintiff are conclusive and make out such a case of ratification as to warrant the trial court to have so declared it as a matter of law. [See Bushnell v. Loomis, supra; Brown v. Worthingham, 162 Mo. App. 508, l. c. 518; Ferrari v. Board of Health (Fla.), 5 South. 1; Sornberger v. Sanford (Neb.), 52 N. W. 368.] The time which had elapsed after the alleged duress was removed, which in this case might justly be construed as an unreasonable delay, accompanied as it is with acts which recognized the contract between the defendant bank and the several directors, as expressed in the resolution passed by the board of directors, April 29, 1909, whereby certain items were turned over to Kroeger as trustee, for plaintiff and his associate directors, must be construed as express ratification thereof and plaintiff’s election to abide thereby. From our views, as expressed above, it follows that plaintiff failed to make out a case sufficient to go to the. jiiry and that the learned trial judge committed no error in so holding. The judgment is accordingly affirmed. ■ Reynolds, P. J., and Allen, J., concur.