Anderson Electric Car Co. v. Savings Trust Co.

REYNOLDS, P. J. — The petition in this case is in three counts. The first, in substance, averred that on a day named plaintiff was the owner of a certain check, drawn on the German Savings Institution, payable to the order of plaintiff, for the sum of $500, signed by one Siegmund. It is further averred that the defendant came into possession of the check “as a trust company” on a day named and although it appeared on the face of the check that it belonged to the plaintiff, defendant, “without any authority or direction from plaintiff, and without the knowledge of plaintiff, proceeded to collect said check and received the $500 called for therein on or about the 24th day of November, 1911. That said check is indorsed upon the back thereof ‘Anderson Electric Co., by H. S. Turner, Jr., Manager,’ and also by ‘1. S. Turner, Jr.’ That said endorsement on the back thereof was not placed there by plaintiff, nor with its authority, knowledge or consent, and the same is not the in-dorsement of the plaintiff.” Plaintiff then states “that the money collected by defendant on its check as aforesaid belonged to the plaintiff. Plaintiff states that it has demanded of defendant that it pay to it the $500 collected by defendant upon plaintiff’s check as aforesaid and that defendant has refused to pay to plaintiff the said sum or any part thereof, but has converted the same to its own use by crediting it to and paying it to one H. S. Turner, Jr. That defendant converted the said $500 to its own use as aforesaid on or about the 24th day of November, 1911, wherefore, plaintiff prays judgment against the defendant on this count for $500 and interest from November 24, 1911.” The second count is for money collected on a check for $200, drawn on the National Bank of Commerce in St. Louis, by one Reymershoffer. The remaining allegations in this second count are identical, except as to the amount and date, with those of the first. [406] The third count is identical in its allegations with the first, except that the instrument there described and on which the money is charged to have been collected is described as a draft drawn by the. Lafayette Bank on the Citizens Central National Bank of New York, payable to the order of one Pauly for $100. The remaining allegations, except as to date and amount, are as in the first. It is alleged that these checks and the draft are filed with the petition. The answer was a general denial. There was a verdict and judgment for the plaintiff for the full amount claimed. From this defendant has duly appealed. Yery clearly this is an action for conversion. It is not for conversion of the checks and draft, but for the money-charged to have been collected on them. On the authority of the decision of our court in Kobusch Furniture & Carpet Co. v. Lowenberg, 194 Mo. App. 551, 185 S. W. 747, this petition states no cause of action. We held in the Kobusch Case, supra; that trover lies only for specific chattels wrongfully converted, and not for money had and received for payment of debts, money being the subject of conversion only when it can be described or identified as a specific chattel. After making the announcement of the law as above stated, our court held in the Kobusch Case, supra, that this seems to be the rule early declared in this State, citing Petit v. Bouja, 1 Mo. 64. Judge NobtoNI, speaking for our court in the Kobusch case, quoted from Hazelton v. Locke, 104 Me. 164, l. c. 168, to the effect that from its nature the title to money passes by delivery “and its identity is lost by being changed into other money or its equivalent in the methods ordinarily used in business for its safe keeping and transmission; that mere failure to deliver money collected on checks on demand would not be technical conversion, nor would the refusal to pay over its equivalent be conclusive evidence of conversion in the sense of the law of [407] trover but might be the ground for an action of assump-sit.” [Simmons v. Spencer, 9 Fed. 581; Kerwin v. Balbatchett, 147 Ill. App. 561, are cited in support of the above.] There is no attempt to do that here; consequently we hold that the petition states no cause of action. Learned counsel for respondent argues that as this point was not made in the court below by demurrer or motion in arrest, it cannot be raised in this court, citing in support of this, Twentieth Century Machinery Co. v. Excelsior Springs Mineral Water & Bottling Co., 273 Mo. 142, 200 S. W. 1079. We do not think that the opinion and point in decision there sustains this contention. It has been decided in many cases by our appellate courts that the point that the petition fails to state a cause of action can be raised for the first time on appeal. The authorities in support of this are so numerous that it is unnecessary to cite them. We are also referred by those same counsel to the case of Kansas City Casualty Co. v. Westport Avenue Bank, 191 Mo. App. 287, 177 S. W. 1092, in support of the petition and judgment. The facts for determination in that case and so much of the decision in it as covers the precise point then before that court are not as here. That .was an action for the conversion of the specific checks. This is an action, not for conversion of the cheeks but for the conversion of money collected on them, which is not in any manner described as to be identified. Moreover, the evidence wholly fails to show any conversion of any specific money by the defendant. Counsel argue that the. label of the action is immaterial. That ‘may -be, but the cause of action attempted to be set up is tort, for conversion. As we hold, it does not set up facts necessary to show conversion, nor does it pretend to be for money had and received. The judgment of the circuit court is reversed. Allen and Becker, JJ., concur.