Williams v. Whitlock

delivered the opinion of the court.

The only question in this case is whether upon the facts hypothetically stated in defendant’s instruction, that suit was maintainable.

The facts seem to have been these. Childs deposited at the banking house of E. W. Clark & Bros. $2,000, in the name of the plaintiff and *560being about to go east, he handed the plaintiff the pass-book and blank checks, with permission to use them if desired, during his absence. For what purpose this was done, does not appear, nor is it material as the case now stands. A few months after, and after the return of Childs to St. Louis, he was suspected and charged with embezzling a large amount of funds from the Bank of Missouri, and the defendants, as agents of the bank, went to the house of plaintiff, in search of property and money of Childs. The plaintiff said she had $1800 of Childs’ money and gave the defendants a check for that amount, which was drawn and handed over to the bank or some officer thereof. The question is, whether the plaintiff had such an interest in the draft or the proceeds, as would authorize her to bring suit for it. Our recent statute regulating proceedings and practice at law, requires a suit to be brought in the name of the party in interest.

It is difficult to arrive at the conclusion, that the plaintiff was the real party in interest, when she disclaimed all interest and when at all events, the facts supposed show that she had none whatever. The only ground of interest and upon that alone the first instruction given was based, was that the money was deposited in her name and her check would control it, so far as the banker was concerned. But this is not a question between the banker and the plaintiff, but between her and a third person to whom she has voluntarily, delivered the money or the check by which the money could be obtained. I see nothing to distinguish this case from that of a servant who had the custody of goods and who delivered the same up to one who claimed them as a creditor of his master or as real owner. Can the servant maintain an action or must the master bring the suit ? The case of a factor, who has an interest in his principal’s goods for some purpose, is very different.

Nor do we think the plaintiff occupies the position of a trustee of an express trust. No duties were imposed upon her, so far as the cas# shows, except that of mere custody, and this was voluntarily relinguish-ed. What injury then has she received ?

We are unable to reconcile the instructions which the court gave. Under the first instruction we do not see well, how the jury could have found otherwise than for the plaintiff, and the second referred a question of law to the jury only calculated to mistify or mislead them. It was for the court to say whether the plaintiff was the real party in interest, upon a given state of facts.

To permit the plaintiff to sue, under the state of facts supposed, would deprive the defendants and the bank for which they acted, of a defence which would be clearly admissible if Childs sued himself. If *561he really claimed this money himself, and the plaintiff had no interest, the bank could of course retain it, if it was part of the funds embezzled, but no such defence could be made against the present plaintiff.

Judgment reversed and cause remanded.