Opinion
No. 41674.
July 10, 1950. Motion to Transfer to Banc or for Modification of Opinion or for Rehearing Overruled, September 11, 1950.
During the occupation of France by the Germans a citizen of France, since deceased, drew checks on her bank account in St. Louis in exchange for francs furnished by another citizen of France. The latter, through an agent for collection, made a claim against the estate of the deceased and recovered a judgment. The trial court granted a new trial on the ground that a license from the Alien Property Custodian to prosecute the claim was required and plaintiff appealed. Such license was required and the Supreme Court will not take judicial notice of a purported license issued during the pendency of the appeal. The trial court had the right to require a new trial on all issues. Regulations in the Journal of the French Republic were properly excluded. Though the payees of the checks were left in blank an action for money had and received will lie.
1. ALIENS: Parties: Actions: French Exchange Transaction: License from Alien Property Custodian Required. Where an action was based on checks given in exchange for francs by one citizen of France to another citizen during the occupation by the Germans a license from the Alien Property Custodian to prosecute the claim was required.
2. EVIDENCE: Appeal and Error: License Issued Pending Appeal: Refusal to Take Judicial Notice. The Supreme Court will not take judicial notice over the objection of respondent of a purported license issued by the Alien Property Custodian during the pendency of the appeal.
3. NEW TRIAL: Discretion of Trial Court Not Abused. The trial court did not abuse its discretion in not limiting the new trial to the single issue upon which the order sustaining the motion was based.
4. EVIDENCE: Conflict of Laws: French Regulations Properly Excluded. Regulations contained in the official Journal of the French Republic were properly excluded because defendant did not introduce an official copy of the provision of the French Code under which these regulations had been enacted.
5. BILLS AND NOTES: Actions: Checks in Blank: Action for Money Had and Received: Sufficiency of Assignment Immaterial. Since the action is for money had and received it is immaterial that the checks have the name of the payee in blank. And the sufficiency of the assignment of the checks to the plaintiff who is acting as an agent for collection is immaterial.
Appeal from Circuit Court of City of St. Louis; Hon. William H. Killoren, Judge.
AFFIRMED.
Chase Morsey, Thomas R. Reyburn, Jones, Hocker, Gladney Grand, Lon Hocker and Benjamin Roth for appellant.
(1) This court will judicially notice a license issued by the duly constituted authority of the United States Government. 12 U.S.C.A. 95 (a); Executive Order 8389, 12 U.S.C.A. 95 (a); Treasury Department Ruling No. 12; 50 U.S.C.A., Appendix 6; State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927; Borrson v. M.-K.-T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Holland v. Anderson, 196 S.W.2d 175; The Pacquette Havana, 175 U.S. 677; Bowles v. United States, 319 U.S. 33; Huckelberry v. Mo. Pac., 324 Mo. 1025, 26 S.W.2d 980; Constitution of U.S., Art. VI; Hamrick v. Dufford, 71 Ohio App. 552, 50 N.E.2d 566. (2) A license having been issued, the sole issue remaining in the case, viz. — has a license been issued? — has become moot and the judgment on the verdict should be reinstated. State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697. (3) This court will judicially notice an official opinion of the Attorney General of the United States as an authority, and this opinion supports the conclusion that no license is required to reduce the claim to judgment. Bowles v. Seminole Rock Co., 325 U.S. 410; United States v. Eaton, 169 U.S. 331. (4) In order to reduce the claim to judgment no license is required. Propper v. Clark, 337 U.S. 472; Roubicek v. Roubicek, 21 So.2d 244, 246 Ala. 442; 11 Law and Contemporary Problems 17; 47 Columbia Law Review 398. (5) If the issue of whether a license has been issued must be tried below, the cause should be remanded for trial of this issue alone, and the determination of the other issues in the first trial retained. Secs. 140 (c), 140 (b), Code of Civil Procedure.
S.A. Mitchell, Harold I. Elbert and James M. Douglas for respondent; Thompson, Mitchell, Thompson Douglas of counsel.
(1) The action of the trial court sustaining defendant's motion for new trial was proper. Plaintiff was not entitled to judgment because he did not have the required license from the proper federal authority as required by Executive Order 8389. 12 U.S.C.A., Sec. 95 A; General Ruling No. 12, 7 Fed. Reg. 2921; Clark v. Propper, 169 F.2d 324. Affirmed: Propper v. Clark, 337 U.S. 472; Bernstein v. N.V. Nederlandsche-Amerikaanshe, 173 F.2d 71; Clark v. Chase Natl. Bank, 82 F. Supp. 740. (2) This court will not take judicial notice of the purported license printed in plaintiff's brief. The license is not a fact within the general knowledge of the court. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; City of St. Louis v. Niehaus, 263 Mo. 8, 139 S.W. 450; State ex rel. F.T. O'Dell Construction Co. v. Hostetter, 340 Mo. 1155, 104 S.W.2d 671. (3) This court will not take judicial notice of a fact which the trial court could not have noticed. 20 Am. Jur., Evidence, sec. 27, p. 55; Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685, 123 S.W. 820. (4) Especially not over respondent's objection which it now makes. State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927. (5) The trial court should be directed to admit in evidence on new trial the official journal of the French Republic containing the regulations prohibiting dealing in foreign exchange. 31 C.J.S., Evidence, sec. 146, p. 798; City of Higginsville v. Alton R. Co., 237 Mo. App. 1204, 171 S.W.2d 795. (6) This court will examine the evidence to determine whether plaintiff made a case for the jury, and whether defendant's motion for judgment in accordance with its motion for directed verdict should have been sustained, and direct the trial court accordingly. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333. (7) Duty of defendant bank as executor to defend. 21 Am. Jur., Executors and Administrators, sec. 223, p. 496; Thompson v. Weimer, 1 Wn.2d 145, 95 P.2d 772; 2 Woerner, The American Law of Administration (3rd Ed.), sec. 324, p. 1023. (8) The Negotiable Instruments Act applies to checks. A check is a bill of exchange drawn upon a bank, payable on demand. 10 C.J.S., Bills and Notes, sec. 5, p. 408. (9) A check drawn on a bank containing an unconditional order to pay a payee a specified sum is a negotiable instrument. Alchian v. Fadler, 212 S.W.2d 78. (10) A check with payee left blank is not an instrument payable to order because in such an instrument "the payee must be named or otherwise indicated therein with reasonable certainty." Sec. 3024, R.S. 1939. (11) A check with payee left blank is not an instrument payable to bearer. Sec. 3025, R.S. 1939. (12) A check with payee left blank is not enforceable. Until the blank is filled up, the check is an incomplete and defective writing. Sec. 3030, R.S. 1939; Schooler v. Tilden, 71 Mo. 580; Thompson v. Rathbun, 18 Or. 202, 22 P. 837; Seay v. Bank, 3 Sneed 558, 67 Am. Dec. 579; Mutual Safety Ins. Co. v. Porter, 7 N.B. 230; In re Eshenbaugh's Estate, 114 Pa. Super, 341, 174 A. 809; 10 C.J.S., Bills and Notes, sec. 136 c. (5). (13) This claim was not, and may not be, brought on the original consideration. The transaction was not a loan, but a sale of checks given in absolute payment for the purchase price received. 10 C.J.S., Bills and Notes, sec. 526, p. 1155; Eichenberg v. Magidson's Estate, 170 S.W.2d 105; Reifeiss v. Barnes, 192 S.W.2d 427. (14) Even if this was a claim for the original consideration, it must be brought by the payee of the check, and there is none. 10 C.J.S., Bills and Notes, sec. 526, p. 1155. (15) A check with payee left blank is no evidence of money had and received. Greenhow v. Boyle, 7 Blatchford 56. (16) Plaintiff, on appeal, may not recover on a cause of action not embraced in the claim filed in the probate court, especially where such claim was a nullity. Carson v. Waller, 104 Mo. App. 621, 78 S.W. 656, 76 A.L.R. 1381 n; In re Mills' Estate, 349 Mo. 611, 162 S.W.2d 807. (17) If in the circuit court this could be construed to be a suit for the original consideration, plaintiff is not the real party in interest because as trustee he holds only the blank checks, and is not the assignee of any agreement to pay. Laws 1943, p. 353, sec. 11; Sec. 847.11, R.S.A. 1939.
On an appeal from the probate court of the city of St. Louis, a verdict for $60,000.00 principal and $11,000.00 interest was returned in the circuit court of that city against the Mercantile-Commerce Bank and Trust Company, executor of the estate of May Scullin DeGheest, deceased. The trial court sustained the executor's motion for a new trial.
Mme. May Scullin DeGheest was a native of St. Louis but married a Frenchman and had lived in Paris, France, for many years. She died on March 23, 1945, over eighty-two years of age. The claimant, a Montreal lawyer, as assignee for collection of M. Laboureix, filed a claim against the estate of deceased founded upon five checks and letters signed by deceased and drawn on and addressed to the Mercantile-Commerce Bank and Trust Company. The name of the payee of each check was left blank and was accompanied by a letter written by the deceased to this bank. One of the letters dated October 24, 1944, said:
"Please be advised that I have drawn against my account a check in the amount of fifteen thousand dollars. This is part of the fifty thousand dollars to which my letter of same date refers.
"As said in the above mentioned letter it is my wish that you should keep in escrow that sum, this even in case of death; so that check is duly met on presentation."
The other three letters were similar. The amount of the four checks, verified by the accompanying letters, totaled $50,000.00. The fifth check and letter were dated December 15, 1944. The amount of the check was $10,000.00 and the contents of the letter were similar to the letters of October 24, 1944.
The checks in question, payable in U.S. currency, were negotiated by deceased for the purchase of francs shortly after the liberation of Paris by the allies. The checks and letters were delivered by deceased to John Freeman. He in turn handed over the checks and letters upon receipt of the francs to his uncle, the Count de Bearn, who delivered them to M. Laboureix who bought and paid in francs for this dollar exchange because he regarded American currency sounder than French currency.
The trial court granted a new trial in this case for the reason that claimant had not secured a license to prosecute this action from the Alien Property Custodian as required by Executive Order 8389, and issued under authority of the "Trading with the Enemy Act." [Title 12, U.S.C.A. 95 (a)]. Claimant contends that no license is required. It is to be remembered that both the deceased and M. Laboureix were residents of France when that country was occupied by the Germans. France was one of the countries included in Executive Order 8389.
The claimant contends that since he does not seek to change the ownership of property but seeks only to have a claim allowed against an estate, no license is needed, and that if the claim is allowed payment should be made to a blocked account where the funds can be held to await the issuance of a license allowing transfer to the claimant.
In passing on claimant's contention we are bound to follow the Federal courts in interpreting Order 8389. Decisions of other state courts are of no aid to us in deciding the problem before us.
Section 1, paragraphs a and e of Executive Order 8389, prohibited the transfer of credits between banking institutions and the transfer of any evidence of indebtedness.
Certainly the checks and letters signed by the deceased are evidence of indebtedness and could not be transferred. "The language of Exec. Order 8389 prohibits the unlicensed transfer of an enemy alien's property. There is no cogent reason for excepting transfers by judicial process." Clark v. Propper, 169 Federal Reporter 2d, Series 324, l.c. 327. This case was affirmed by the Supreme Court of the United States and reported in 337 U.S. 472. In that case the American Society of Composers, Authors and Publishers (ASCAP) owed royalties to the Staatlish Genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger (AKM), an Austrian association. In ruling the case the Supreme Court of the United States [381] said:
"We hold that a transfer of this credit from a liability owed by ASCAP to AKM, to a liability owed by ASCAP to the receiver, would violate the prohibition against transfers of credit." Loc. cit. 482.
To the same effect is the recent case of Clark, Attorney General, v. Chase Nat. Bank, 82 F. Supp. 740.
Under the authority of the Federal case just cited, we hold that it was necessary for the claimant to first obtain a license from the Alien Property Custodian before this suit could be prosecuted.
The motion for a new trial was sustained August 1, 1949. On December 12, 1949, the claimant obtained a license from the Alien Property Custodian to prosecute this claim. It is his contention that we should take judicial notice of the license and reverse the order of the trial court with directions to enter a judgment in accordance with the verdict of the jury. There is no doubt of our right to take judicial notice of executive orders that have the force and effect of law. For instance, we take judicial notice of Executive Order 8389. But in this case the license was not issued until several months after the motion for rehearing was ruled. Therefore, the trial court could not have taken judicial notice of the issuance of the license and ordinarily this court will not judicially notice what the trial court could not, and especially over the objection of the other party as was done in this case. State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927. We think the executor is entitled to have the trial court determine the authenticity of this reported license. It is brought to our attention only by a copy printed in the brief of claimant.
The reason assigned by the trial court for granting a new trial was that claimant had not secured a license to permit him to prosecute this claim, but he did not limit the new trial only to this issue as he had power to do under our new Civil Code. We are asked by claimant to limit the new trial to this issue only. The trial court has certain discretions in granting a new trial and we have often ruled we will sustain the action of the trial court in granting a new trial where we would not have reversed the judgment if the motion had been overruled by the trial court. The reason for this rule is that the trial judge participated in the trial and knew what took place, much of which cannot be preserved in any bill of exceptions or record. Arnold v. Alton R. Co., 343 Mo. 1049, 124 S.W.2d 1092; Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811. We do not think the trial court abused his discretion in this ruling.
The executor contends that the trial court erred in excluding certain regulations contained in the official Journal of the French Republic, a publication published and printed by the French Government, and for this further reason the granting of a new trial by the trial court should be sustained. This exhibit was excluded because the executor did not introduce an official copy of the provision of the French Code under which these regulations had been enacted.
The executor asserts that it was at least prima facie evidence of the regulation and, therefore, admissible under Section 1817, R.S. Mo., 1939. That section provides: "The printed volumes, purporting to contain the laws of a sister state or territory, shall be admitted as prima facie evidence of the statutes of such state or territory." This section deals only with a sister state or territory and, in our opinion, the purported printed regulations of the Republic of France do not come within its provision.
If this publication is admissible under S.B. 213 [Sec. 1814.6] Laws of 1949, we cannot convict the trial court of error because this act was not approved until after the new trial in this case was granted.
The executor contends that sustaining the motion for a new trial was proper because its motion for a directed verdict should have been sustained.
The checks and letters were filed in the probate court as a claim against the estate. The name of the payee of the checks had not been filled in as provided by Section [382] 3030, R.S. Mo., 1939, when filed in the probate court, which constituted the only pleading for claimant in this case.
It is contended by the executor that under Section 3030, supra, this action cannot be maintained because the name of the payee was not filled in as provided by that section and cites our case of Schooler v. Tilden, 71 Mo. 580, to support his contention. That case does say that if it had been necessary for the holder to sue on the note, the holder would have been obligated to fill in the blank. However, that action was not based on a note and therefore the statement is dictum.
But we consider this action is not on a negotiable instrument but, rather, upon an action for money had and received.
"`The action for money had and received has always been one favored in the law, and the tendency is to widen its scope; it being a flexible form of action, levying tribute on equitable, as well as strictly legal, doctrines; so that, it has become axiomatic that the action lies where "the defendant has received or obtained possession of the money of the plaintiff, which, in equity and good conscience, he ought to pay over to the plaintiff."' Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527, 535. See also Murry v. Central Bank, 226 Mo. App. 400, 40 S.W.2d 721; Whitecotton v. Wilson, supra. In such an action it is held that it is not necessary to allege an express promise to pay, nor is a privity of contract required. The law implies the privity. Third Nat. Bank v. St. Charles Sav. Bank, 244 Mo. 554, 149 S.W. 495; Clifford Banking Co. v. Donovan Commission Co., supra; Whitecotton v. Wilson, supra; Richardson v. Moffit-West Drug Co., 92 Mo. App. 515, 69 S.W. 398; Hall v. Marston, 17 Mass. 575." Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928, l.c. 931.
There is evidence, if believed, that the deceased received francs from M. Laboureix in exchange for the checks payable in U.S. currency she had executed. The inference could be drawn from the evidence that it was necessary for deceased to obtain francs so she could live and that she wanted to pay her son's debts.
Executor also contends that there is not a sufficient assignment of these checks by M. Laboureix to Mr. Therrien but a mere delivery. The executor has not cited any authority to support this contention, nor has it shown wherein it would be prejudiced. We think the point is without merit. Kleinschmidt v. Globe-Democrat Publishing Company, 350 Mo. 250, 165 S.W.2d 620.
Finding no prejudicial error in the record, the judgment is affirmed. All concur.