[23, 24] It is next insisted that the appel-, we do not think there was any effort to keep lant aided the Bank of Gillette to keep open it secret. and receive deposits while said bank was insolvent, and known to the appellant to be insolvent. If there were no evidence in the case as to the condition of the country at the time the contract was made, such condition was matter of common knowledge. Many institutions and persons would have failed if they could not have gotten help, and apparently it was thought that, by lending the Bank of Gillette $75,000 additional money, that additional money would enable the bank, not only to pay its debts, but to assist the farmers to make another crop, and at that time it appears that everybody was of the same opinion. Petitioners call our attention to a statement in the opinion with reference to lending money on crops, and states that the court evidently overlooks the proof that new money had to be loaned to persons already indebted to the bank before they could start making rice crops. As we have already said, the situation was bad. It was necessary to furnish the rice farmers with money to make crops, or they could not make them, and doubtless everybody thought at the time that that was not only the best, but the only, way by which they could collect what the rice growers already owed. In addition to this, the proof was that the American Bank loaned on real estate approximately $50,000, and thereby enabled the Bank of Gillette to pay $50,000 of its indebtedness with money received loaned on real estate which was not, prior to that time, pledged to the Bank of Gillette. That the Bank of Gillette was hard pressed and needed to borrow more money was, of course, known to all the parties. But, if a bank in that condition could not borrow money because the lender would become liable for all of its debts if he advanced money, then, if a bank should happen to get where it did not have money to meet its obligations, it would have to fail, no matter how much property it had. If lending money by one bank to another when the borrowing bank needed it would make the lender liable for all the debts and liable, as appellees argue, for fraud in keeping the bank open, then no bank could afford to lend another money. Mr. Maxwell was bank examiner, and had supervision over all the banks of the state. The Bank of Gillette filed its statements as required by law, and the department made special investigation of the affairs of the bank. He discussed the matter with Mr. Hicks, and learned that Mr. Hicks or the American Southern Trust Company was willing to extend further credit in conjunction with the First National Bank. Mr. Maxwell further says that in 1920 and 1921 not only banks, but financial institutions in general, were needing all the assistance they could get to preserve their existence; that the condition was brought about by the deflation of values in commodities; and that we had no forewarning of it; that, as a result of this condition, many banks in the state were suddenly placed in a condition where they were overextended; that he had a conference with representatives of the Little Rock banks for the purpose of obtaining co-operation of [25] It is next contended that the appelthe larger institutions in Little Rock in assist-lant is liable for loans made by its agent, ing the country banks throughout the state. Walz, in excess of the statutory limit, and He said the reports filed by the Bank of Gil- lost. The liability referred to by appellees lette during his administratoin did not indi- is a statutory liability, but there certainly cate insolvency, and, if he had thought it was could be no liability on the part of the bank insolvent, he would have required it to re- because of the loans made to Crandall, Moll, store any impairment of its capital by levy- and others. These parties were already ining an assessment on its stockholders, if nec-debted to the Bank of Gillette before Walz essary. He further said, if there had been went there. And Mr. Norden says in his any indication of insolvency, he would have testimony that the bank had a large number closed the bank. It therefore appears that the bank commissioner, whose duty it was under the law to know, did not believe it was insolvent, and the appellant did not believe it was insolvent. The bank commissioner was told about the contract. It has been suggested by some of the appellees that the contract was kept secret. It was made known to the banking department; it was spread on the record of the Bank of Gillette; and every time the Bank of Gillette was examined by the banking department it was known, and of loans outstanding when Walz came. Crandall's debt was reduced while Walz was there. Walz held the borrowers down, and that made some of them sore. But the lending money to these parties mentioned by appellees was evidently for the purpose of collecting the debt these parties already owed. After a careful re-examination of the entire record, we have reached the conclusion that the original opinion was correct, and the petition for rehearing is therefore denied. (293 S.W.) R. W. WILSON MOTOR CO. et al. v. HOOVER et al. (No. 15863.) Kansas City Court of Appeals. Missouri. Feb. 28, 1927. Rehearing Denied April 4, 1927. I. Corporations 506-Corporation, which is real party in interest, may maintain action on replevin bond to president, described as individual doing business under trade name. Corporation, which is the real party in interest, may maintain an action on replevin bond in favor of the president, misdescribed as an individual doing business under the corporate name as a trade name. 2. Parties 59 (4)-Dissolved corporation's petition on replevin bond may be amended in names of president and directors (Rev. St. 1919, 9755, 9816). A petition in damage suit by a dissolved corporation on a replevin bond may be amended in the names of its president and board of directors, under Rev. St. 1919, §§ 9755 and 9816, providing that such officers become trustees upon dissolution and are empowered to settle corporate affairs. 3. Principal and surety 145(1)-Order in replevin suit for return of property and dismissal of suit for plaintiff's refusal to file additional bond held not res judicata of action for damages on replevin bond (Rev. St. 1919, § 2079). Order in replevin suit for return of property to defendants and for dismissal of suit, for plaintiff's refusal to file additional bond required, held not a final judgment and res judicata of action for damages on replevin bond, in view of Rev. St. 1919, § 2079, requiring court, where plaintiff in replevin fails to furnish additional bond, to direct sheriff to restore property to defendants and to dismiss the action. 4. Replevin 89-Statute relating to defendant's failure to furnish additional forthcoming bond in replevin does not apply to plaintiff's failure to furnish additional security (Rev. St. 1919, § 2080). Rev. St. 1919, § 2080, providing that, where defendant in replevin suit fails to furnish additional forthcoming bond as required by the court, the court shall order restitution of the property and judgment for plaintiff and against defendant and his sureties, does not apply to a case where plaintiff fails to furnish additional bond. 5. Replevin 33(1)-Statutes providing summary remedy against plaintiff in replevin, failing to prosecute suit, do not apply to his failure to furnish bond (Rev. St. 1919, §§ 2082, 2083). Rev. St. 1919, § 2082, describing procedure where plaintiff in replevin has possession of the property and fails to prosecute the suit, and section 2083, providing for summary judgment against plaintiff and his sureties in such case, do not apply to case where plaintiff in replevin fails to furnish additional security bond. 6. Replevin 130-Plaintiffs In replevin not giving required bond are estopped to assert nonassessment of damages by summary judgment as bar to suit therefor (Rev. St. 1919, §§ 2085, 2090). Plaintiffs in replevin, who failed to furnish additional bond required by the court, are estopped, in a suit by the defendants in replevin for damage, from asserting that the nonassessment of damages by summary judgment, under Rev. St. 1919, § 2085, is bar to the action, in view of section 2090, providing that suit on replevin bond may be by civil action against the obligors in the name of the party to whom the bond was given. Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge. Action by the R. W. Wilson Motor Company and others against J. G. Hoover and another, doing business as the Hoover Bros. Construction Company, and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Rader & Rader and Joseph S. Brooks, all of Kansas City, for appellants. Hackney & Welch, of Kansas City, for respondents. ARNOLD, J. This is a common-law action for damages on a replevin bond, given by defendants in a prior action in replevin. The replevin suit was instituted by defendants herein against R. W. Wilson, doing business as R. W. Wilson Motor Company, and the obligee in the bond was so designated. At the return term of the replevin suit the R. W. Wilson Motor Company, a Missouri corporation, entered its appearance and filed its motion to be made a party defendant, and this motion was sustained. The corporation, thereupon, after claiming the property and demanding its return, filed a motion to require plaintiffs in the replevin suit to file an additional replevin bond specifically naming the said corporation as such as one of the obligees therein. The said motion was sustained, and an order accordingly entered requiring plaintiffs therein to furnish such additional bond. Plaintiffs therein defied the said order of the court, refused to give the additional bond and the delivery of the propof the replevin suit was thereupon ordered by erty to defendants therein, and the dismissal the court. Thereafter this suit was instituted, the defendants in the replevin suit becoming the plaintiffs herein and plaintiffs in the replevin suit becoming defendants herein, to recover damages sustained to the property involved, during the pendency of the replevin suit and while the property was in possession of defendants herein, viz., J. G. Hoover and C. A. Hoover, doing business as Hoover Bros. Construction Company. From the fragmentary and more or less disconnected statements of counsel and the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The petition alleges the formal facts above pleadings of record in both cases, it appears the R. W. Wilson Motor Company was a cor-related and prays judgment in the sum of $4,poration dealing in motor trucks; that at the time the replevin suit was instituted the corporation had possession of two new 7-X Stewart trucks, equipped with steel contractor's dumps and hoists, valued at $8,080 for the two; that on or about April 4, 1921, J. G. Hoover and C. A. Hoover, doing business as Hoover Bros. Construction Company, filed suit in the circuit court of Jackson County, Mo., at Kansas City, to replevin said trucks, claiming right of possession thereof, naming themselves as plaintiffs and describing defendants therein as "R. W. Wilson, doing business as R. W. Wilson Motor Company." That on the institution of the replevin suit and incident thereto, plaintiffs therein executed and delivered to the sheriff of Jackson county, Mo., a replevin bond in the penal sum of $16,000, which was double the value of the trucks as stated in the affidavit for replevin. The bond was signed by the Hoovers, as principal, with defendant United States Fidelity & Guaranty Company, as surety. The bond is statutory, and it is unnecessary to set it out. 580 and costs. The defendants each filed sparate answer in the form of general denials. Plaintiffs filed an amended petition, naming R. W. Wilson Motor Company, R. W. Wilson, H. B. Boyd, and O. H. Earnest, trustees of said R. W. Wilson Motor Company, and R. W. Wilson individually, as plaintiffs, and J. G. Hoover and C. A. Hoover, doing business as Hoover Bros. Construction Company, and the U. S. Fidelity & Guaranty Company, as defendants. The said defendants each filed separate demurrer upon the grounds (1) that the petition does not state facts sufficient to constitute a cause of action, (2) there was a defect of parties pleaded, (3) that both parties pleaded were not necessary parties to a complete determination of the action, and (4) that R. W. Wilson was not a necessary party to the action. The demurrers were overruled, and on April 8, 1925, defendants filed their petition for review and to set aside the judgment. Plaintiffs filed a timely demurrer to the petition for review. Thereupon, on May 14, 1925, the parties entered into the following stipulation: "First: That the default judgment rendered in this court for plaintiffs on March 6, 1925, be set aside and for naught held. "Second: That plaintiffs be permitted to amend their first amended petition by interlineation, increasing their allegations of damages $750, and asking for 6 per cent. interest from date of commencement of this suit, and that defendants be permitted to forthwith file answers to plaintiffs' first amended petition and plaintiffs file reply thereto. "Third: That this cause be thereupon removed from Division No. 9 of this court to Division No. 4 of this court, a jury waived, and the cause submitted to the court for trial in the following manner, to wit: Upon application of plaintiffs herein, the court by order required defendants to file an additional replevin bond naming R. W. Wilson Motor Company as obligee therein, on or before March 30, 1922, or to return to defendants therein the property replevined. Plaintiffs therein, by their attorneys, declined and refused to file such additional replevin bond, on the ground that the court had no jurisdiction to make an order requiring such addition and that the bond already given was sufficient. Plaintiffs expressly waived the time given for the filing of the additional bond required in the order and asked the court to proceed as though the time for giving same had expired. Defendants therein asked and were granted leave to amend their and record entries and proceedings in the orig"(a) All the pleadings, replevin bond, motions several answers by interlineation, asking $4,-inal replevin suit, same being No. 157185 on the 000 for the taking and detention of the prop-docket of the circuit court of Jackson county, erty. Defendants then asked the court to Mo., shall be considered in evidence. proceed to require the return of the property, and to assess defendant's damages, and to dismiss the action at the cost of plaintiffs, as provided in section 2079, R. S. 1919. The court declined to assess the damages for the taking and detention of the property, but ordered and adjudged that, in view of the refusal of plaintiffs to comply with the order of court requiring additional bond, the sheriff forthwith retake the property replevined and delivered same to defendants, and that plaintiffs take nothing by their writ; that the cause be dismissed; that defendants go hence without day and have and recover from plain- "Fifth: This stipulation shall govern in the tiffs and the U. S. Fidelity & Guaranty Com-trial of this cause as herein provided, but shall not be binding upon the parties hereto upon a pany, their surety on the replevin bond, the subsequent trial after appeal thereof, if any." costs of the suit. Thereafter, as above indicated, this suit was instituted to recover damages done to the trucks while they were being returned under the writ of replevin. "(b) The court shall try and determine the issues of res adjudicata and of plaintiffs' right to sue on the replevin bond raised by the pleadings applicable to this evidence, and, if the decision be for plaintiffs, shall render judgment against the defendants on the replevin bond, awarding damages to plaintiffs for the amount sued for and costs as prayed in the amended petition; and if the decision be in favor of defendants on these issues, the court shall render judgment in favor of defendants and for costs. "Fourth: The losing parties in the trial court shall have the right of appeal from the court's judgment as in ordinary cases. The cause was tried by the court in accordance with the terms of said stipulation. Judgment was for plaintiffs in the sum of $5,330 principal, and interest thereon in the sum of $1,028.69, a total of $6,358.69, together with costs. Motions for a new trial and in arrest were overruled, and defendants have appealed. [1] It is urged that the giving of declarations of law Nos. 2 and 3 for plaintiff was error. These declarations are as follows: "(2) The court declares the law to be that, the obligees named in the replevin bond being 'R. W. Wilson, doing business as R. W. Wilson Motor Company,' it conclusively appears from said bond that the R. W. Wilson Motor Company was intended to be the obligee thereof, though misdescribed as an individual or trade name, instead of a corporation, and the court further declares the law to be that the R. W. Wilson Motor Company, as a corporation would have a common law right of action on said bond, for damages to its property pending the replevin suit, inflicted by Hoover Bros. "(3) The court declares the law to be that the bond being payable to R. W. Wilson by name, and he being the president and agent of the corporation, the R. W. Wilson Motor Company, the latter (was) as principal have a right of action on the bond for damages done to its property while in the custody of the plaintiffs in the replevin suit under the writ of replevin." In support of this position appellants argue that the bond ran to R. W. Wilson, as defendant in the case. We are unable to grasp the force of this argument, in view of the language of the bond, to wit are bound to R. W. Wilson, doing business as R. W. Wilson Motor Company." The record shows that the R. W. Wilson Motor Company forfeited its charter prior to the bringing of this action; and the issue is raised as to whether or not a dissolved corporation can maintain an action in its own name, or whether a petition in such case may be amended in the name of its officers and directors. It is the contention of appellants that such amendment cannot be made in the name of its officers and directors. Discussing the right of an undisclosed principal to sue on a contract payable to its agent, it is said in 30 Cyc. pp. 53, 54: "In theory, this worked no modification of the rule that only a party to a contract can sue for its breach; for the undisclosed principal was deemed, in point of law, to be a party to the contract. In substantial effect, it signified the partial adoption, in common-law procedure, of the modern principle of the real party in interest." This is the rule followed in this state, as expressed in Wilson Co. v. Insurance Co., 300 Mo. 1, 40, 254 S. W. 266, 278, wherein it is said: "Under the policy of insurance, the relation created between the respondent and the appellant was contractual, the president of the Exchange and the Exchange itself being named therein solely for convenience. Losses incurred, while nominally payable to the president, were for the benefit of the respondent. The right of the latter to sue in the event of loss, with or without joining either the president or the Exchange, therefore, although the respondent was not named in the contract, is within the power conferred by the statute." To the same effect is the ruling in Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300, and State ex rel. v. O'Neill, 74 Mo. App. 134. And it is further said in the Wilson Company Case, after citing various Missouri decisions: "The ruling in these cases is to this effect; that 'a contract made between two parties, based upon a valid consideration, may be enforced by third parties when entered into for their benefit and that is true though such parties are not named in the contract.' On the merits we hold that the respondent was the real party in interest and authorized to institute this action." See, also, Elders v. Land Co. (Mo. App.) 257 S. W. 515. [2] It is noted from the petition herein, as well as the amended answer, that the R. W. Wilson Motor Company was dissolved as as a corporation after bringing of the replevin suit. The petition fixes the year of such dissolution as 1923, while the amended answer puts the time as 1922. It is not disputed that, at the time of its dissolution, R. W. Wilson and the other individuals named in the amended petition constituted the president and board of directors thereof. Sections 9755 and 9816, R. S. 1919, provide that such officers become the statutory trustees of the corporation upon its dissolution or forfeiture; and they are thereby empowered to settle the affairs and collect the outstanding debts and divide the money and property, after paying the debts due and owing by such corporation. While it is true the bond ran to "R. W. Wil son, doing business as R. W. Wilson Motor Company," yet the pleadings and evidence were such as to support the court in its declaration No. 2, to the effect that: "It conclusively appears from said bond that the R. W. Wilson Motor Company was intended to be the obligee thereof, though misdescribed as an individual or trade name, instead of a corporation. In this state of fact the statutes cited seem to determine the suit was properly brought by the trustees. This ruling is amply supported by the citations just named, and carries with it an adverse ruling as to defendants' charge of error against declaration of law No. 3. Defendants' citations are found, on examination, not to support a contrary rule. [3] It is urged that the order in the replevin suit for the return of the property to defendants and for dismissal of the replevin suit, on the refusal of plaintiffs to file the additional bond required, constituted a final judgment and is res adjudicata. We think, 2079 these matters are left to be determined "If the court should, at any time before trial, be satisfied that the bond of the plaintiff shall not be good and sufficient, an order shall be made that the plaintiff give a new bond, with good and sufficient sureties, within such time as the court in such order shall direct; and upon his failing to comply with such order, the court shall make a further order that the sheriff or other proper officer retake the property and deliver it to the defendant, and that the plaintiff deliver the same to the officer therefor, and that the cause be dismissed at the costs of the plaintiff and his sureties in the bond." This provision makes it mandatory on the court empowered by the act to visit punishment on the plaintiffs in a replevin suit for refusal to comply with the court's order to furnish additional bond (1) by taking the property out of the custody of plaintiffs and restoring it to the defendants, and (2) dismissing plaintiffs' action at their cost. The act gives the court no power to do anything else. It does not provide for the impaneling of a jury to assess the value of the property or the damages, nor does it empower the court to do this. [4] Section 2080, R. S. 1919, applies to a forthcoming bond by a defendant in a replevin suit, which, if found insufficient by the court and an order is made for an additional bond and the defendant refuses to furnish such bond, the court (a) shall order restitution of the property, (b) that the defendant's answer or other pleading be stricken out, and (c) shall render such judgment for the plaintiff as the court may, by law, render against the defendant and his sureties. It is manifest this section does not apply to the situation here presented where plaintiffs refused to furnish additional bond. [6] Section 2085 provides the procedure where the defendant fails in his defense. In such case the statute provides for the assessment of damages, value of the property, and summary judgment for the plaintiff against the principal and sureties on the replevin bond. Section 2090 makes the following provisions: "If in any case it shall become necessary to sue upon any bond given in virtue of this article, the same may be done by civil action against the obligors, jointly or severally, in the name of the party to whom the bond was given." In the case of Morrison v. Yancey, 23 Mo. App. 670, 673, it is held: "It was the plaintiff, who, by his own action, prevented an assessment of damages in the replevin suit, and he is estopped from asserting that the nonassessment of damages in that suit is a bar to the present action." See, also, Huttig-McDermid C. Co. v. Shirt Co., 140 Mo. App. 374, 124 S. W. 1094; Wooldridge v. Quinn. 49 Mo. 425; Waterman v. Frank, 21 Mo. 108. We therefore hold that plaintiffs, in the replevin suit, in refusing to give additional bond on order of the court, and thus having prevented defendants from having damages assessed, are estopped from asserting that such nonassessment of damages in the replevin suit is a bar to the present action. We find nothing in defendant's citations contrary to this ruling. What we have already said rules against defendants' contention that it was error for the court to say, in declaration No. 3, that the bond, being payable to R. W. Wilson, by name, he being president and agent of the corporation, the corporation would have a right of action on the bond for [5] Section 2082 describes the procedure damages done to its property, while in the where the plaintiff has possession of the prop-custody of plaintiffs in the replevin suit. We erty and fails to prosecute his suit and the defendant in his answer claims the property and demands return thereof, the court or a jury may assess the value of the property taken, and the damages for taking and detaining the same for the time such property was taken or detained from defendant until the day of the trial of the cause. Section 2083 provides, in such case, for a summary judgment against the plaintiff and his sureties on the replevin bond, and gives the defendant his election to take the property or its assessed value. It is obvious this provision is different from that contained in sec tion 2079, where the action of the court is not intended to be decisive of property rights or values, nor of damages sustained by the defendant. In the application of section have already decided against defendants' contention that the statutory trustees of a dissolved corporation are without right to maintain an action in this behalf. As above stated, sections 9755 and 9816, R. S. 1919, provide that the officers of a dissolved corporation become the statutory trustees thereof and may maintain any suit which the corporation could have maintained but for its dissolution. This ruling goes to the question of misjoinder of parties which defendants assert, and determines that issue against defendants. We find no reversible error of record, and the judgment is accordingly affirmed. BLAND, J., concurs. |