
    THE SOUTHWEST NATIONAL BANK, Appellant, v. R. J. HOUSE et al., Respondents-.
    Kansas City Court of Appeals,
    May 19, 1913.
    CHECKS: Fraudulent Inception: Good Faith: Usual Course of Business. The payee in a cheek for $5240, which he had fraudulently obtained from the drawer, transferred it by indorsement to a bank, with which he had recently opened an account and other than the one on which it was drawn, and had the amount entered on his pass book by the -receiving teller. He then immediately went to the paying teller’s window and presented his check for cash, which the paying teller paid after conferring with the receiver. It was shown that the usual course with the bank thus receiving a large check on another bank in the same city, was to send it to the latter for certification, and that it was done in this case within fifteen minutes of receiving it, and the latter bank refused to honor the check. But before the former bank had learned of the cheek’s dishonor, it paid the payee’s check as above stated, thus not waiting to hear the result of its own inquiry. It was held that these facts made an issue of fact for the trial court whether the bank purchased the check in good faith in the usual course.
    Appeal from Jackson Circuit Court. — Hon. W. O. Thomas, Judge.
    Affirmed.
    
      Ellis, Cook & Barnett for appellant.
    (1) Respondents made no proof of any equities against the payee, since the only evidence offered was hearsay or legal conclusion, or variance from the answer admitted over appellant’s objection. Barnes v. McMullens, 78 Mo. 269, 274;- Gullett v. Hoy & Orton, 15 Mo. 400; Cutler v. Cook, 77 Mo. 391; Crawford v. Johnson, 87 Mo. App. 485; Kelly v. Staed, 136 Mo. 435; R., p. 71 and p. 5; Ogden on Negotiable Instruments, p. 121; Bank v. Refrigerating Co., 326 Mo. 407; Powers v. Woolfolk, 132 Mo. App. 362. (2) Judgment should have been for appellant because, assuming that respondents did show a good defense to the check, yet appellant met its burden of proof by showing that it was an innocent purchaser for value in due course since it received the cheek in the usual form of a bank deposit, and in due course paid out money in reliance thereon. Appellant bank was not robbed of its character of a purchaser for value by the méré fact .that at the time of paying the money thereon the cheek had not yet appeared upon the bank’s ledger as a credit to the depositor. Bank v. Refrigerating Co., 236 Mo. 407; Ayres v. Bank,-79 Mo. 424, 425; Arnold v. Bank, 100 Mo. App. 476, 478; Investment Co. v. Bank, 96 Mo. App. 144; Butcher v. Butler, 134 Mo. App. 61; Bank v. Roll, 60 Mo. App. 588. (3) Nor by the fact that after the check’s dishonor appellant withheld credit for the same to the depositor from ■ the ledger. Bank v. Refrigerating Co., 236 Mo. 416; Dyinock v. Bank, 67 Mo. App. 102; Bank v. Roll, 60 Mo. Ápp. 589; Ayers v. Bank, 79 Mo. 425. (4) Nor, by the fact that only a portion of'the agreed price therefor had been paid out by the appellant. Sec. 10024, R. S. 1909. Dresser v. Missouri & Iowa Ry. Const. Co., 93 U. S. R. 92; Record, p. 13. (5) Appellant’s action was brought in proper form, even to effect merely a pro tanto recovery, since partial payment by the indorsee of the purchase price is matter of defense, to be urged by the maker only in case he can show a good defense against the paper in the hands of the payee. Banister v. Kenton, 46 Mo. App. 462; Dresser v. Missouri & Iowa Ry. Const. Co., 93 U. S. 92; Ogden on Negotiable Instruments, p. 312; 7 Cyc., 943; Bunker on Negotiable Instruments, p. 104; Eaton & Gilbert on Commercial Paper, p. 374.
    
      Haff, Meservey, German & Michaels and Charles M. Blackmar for respondents.
    (1) The. trial court found that plaintiff was not an innocent purchaser for value, and not entitled tor recover on its petition, and the judgment being in tbe nature of a finding of fact and against the plaintiff, tbe judgment should be affirmed. Johnson v. Grayson, 230 Mo. 394; Loan Co. v. Killin, 153 Mo. App. Ill; Bank v. Hammond, 124 Mo. App. 180; Pittsburg Bridge Co. v. Transit Co., 135 Mo. App. 583; Kelley v. Eailroad, 151 Mo. App. 311; Forder v. Handland, 155 Mo. App. 459; Bank v. Lowder, 141 Mo. App. 607; Lorimer v. Bryon, 153 S. W. (K. C.) 1069; Bethune v. Eailroad, 139 Mo. 580; Gibson v. Bailey Co., 1Í4 Mo. App. 337. (2) Tbe plaintiff and appellant in this case is entitled to no review of tbe weight of tbe evidence because all of tbe evidence taken at tbe trial of tbe case is not printed in its abstract of tbe record. Brand v. Cannon, 118 Mo. 598; Ogleby v. College of Dental Surgery, 71 Mo. App. 339; Plumbing Co. v. Brewing Co., 126 Mo. App. 270;. Bradley v. Bradley, 119 Mo. 62; Eeed v. Peck, 163 Mo. 336; Eppn stein v. Clothing Co., 67 Mo. App. 221. (3) Defendants’ answer sufficiently raised tbe issue of partnership, and tbe court did-not err in refusing to open tbe case. Coal & Coke Co. v. Aronson, 102 Mo. App. 590.
   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 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 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. 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. [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.  