Wulfert v. Boatmen's Bank of Jefferson County

671 S.W.2d 355, 1984 Mo. App. LEXIS 3679
CourtMissouri Court of Appeals
DecidedMay 1, 1984
DocketNo. 47025
StatusPublished
Cited by3 cases

This text of 671 S.W.2d 355 (Wulfert v. Boatmen's Bank of Jefferson County) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wulfert v. Boatmen's Bank of Jefferson County, 671 S.W.2d 355, 1984 Mo. App. LEXIS 3679 (Mo. Ct. App. 1984).

Opinion

STEWART, Judge.

Plaintiff filed an action against Boatmen’s Bank of Jefferson County and Rita Shady challenging the validity of five assignments purporting to assign a savings account and four certificates of deposit to Boatmen’s as collateral security for a loan made by Boatmen’s to Ronald Eisenbeis. Eisenbeis and Tower Grove Bank and Trust Company were subsequently made parties to the action. Boatmen’s filed a counterclaim against plaintiff and cross claims against Shady, Eisenbeis and Tower Grove. Tower Grove was permitted to interplead the funds represented by the savings account and the certificates of deposit and by stipulation of the parties retained the funds pending the litigation. In the court tried case the trial court found that the assignments were invalid and entered judgment in favor of plaintiff against Boatmen’s. The court also found for Boatmen’s against Eisenbeis on the note executed by Eisen-beis and entered judgment against him in the sum of $44,100.00.

Boatmen’s has appealed contending that the trial court erred in (1) finding that plaintiff did not execute the assignments because it was against the weight of the evidence; (2) finding that the assignments were unenforceable without the signature of Mrs. Shady’s husband, because Rita Shady was one of three joint tenants, any one of whom had the power to make the assignments; (3) holding that the assignments were unenforceable because they were applicable only to a loan made to the assignors, in that this conclusion ignored the intention of the parties; (4) finding against it as to plaintiff and Rita Shady on the ground that the contracts were unenforceable by their terms, because the assignments expressed the intentions of the parties and thus were enforceable contracts; and (5) in failing to find it was entitled to reimbursement for amounts it conveyed to Tower Grove to pay the balance of a loan made to plaintiff by Tower Grove for the benefit of Eisenbeis.

The primary contested issue is whether plaintiff executed the assignment forms. In considering this issue we accord the trial court the same deference that we accord a jury with respect to the findings of fact.

Plaintiff, an elderly woman, moved back to St. Louis in 1970, after the death of her husband. A1 Shady is plaintiff’s brother, [358]*358Rita Shady is the wife of A1 Shady. Ronald Eisenbeis is the son-in-law of Mr. and Mrs. Shady.

Plaintiff opened a savings account at Tower Grove on April 30, 1970. As a convenience to plaintiff, the names of plaintiff’s brother and his wife were placed upon the account, and they signed the signature card. The account read “Marian Wulfert or Mrs. A1 Shady or A1 Shady.” Plaintiff also purchased four certificates of deposit in the names of “Marian Wulfert or A1 Shady or Rita Shady.” Neither A1 Shady nor Rita Shady claim any interest in the savings account or the certificates of deposit.

On January 16, 1981, Mr. Eisenbeis borrowed $42,000.00 from Boatmen’s Bank and executed a promissory note in that amount. To secure the note he presented an assignment of plaintiff’s savings account and of the certificates of deposit. The assignment forms had been signed by Mrs. Shady and contained a signature purporting to be that of plaintiff. A portion of these proceeds were used to pay off the balance of a note executed by plaintiff and Mrs. Shady payable to Tower Grove and secured by the same collateral contested here. Plaintiff had borrowed the money from Tower Grove for the purpose of making a loan in the same amount to Eisenbeis.

When Mr. Eisenbeis offered to put up the savings account and certificates of deposit as collateral security on the promissory note executed with Boatmen’s Bank, the president of the bank requested that Eisen-beis have the assignments notarized. Boatmen’s provided Mr. Eisenbeis with five unsigned assignment forms. On or about January 15, 1981, Mr. Eisenbeis took the forms to Mrs. Shady at her home, where she signed them. Mrs. Shady understood that the four certificates of deposit and the savings account were to be used as collateral for Mr. Eisenbeis’ loan at Boatmen’s Bank. Mrs. Shady signed the assignments with the belief that Mr. Eisenbeis had made arrangements with Mrs. Wulfert, and that Mrs. Wulfert had agreed to assign her securities to Boatmen’s Bank. Plaintiff was not at Mrs. Shady’s home when Mrs. Shady signed the forms and she did not see plaintiff sign them. Mrs. Shady testified that she imagined or supposed she had spoken to plaintiff before signing the forms.

Mr. Eisenbeis did not appear at the trial although ^ie was under subpoena. Portions of his deposition were read into evidence. He testified that he had arranged to meet plaintiff and Mrs. Shady at plaintiff’s home for the purpose of assigning the collateral security; that he “told them here are the papers switched from Tower Grove to Boatmen’s and sign them.”

A handwriting expert testified that in his opinion there were no features of forgery in the signatures on the assignment forms. He also testified that the typical features of forgery are slow awkward pen movements.

Plaintiff testified that she had not been asked to sign the documents in question and the signature “Marian J. Wulfert” on the documents was not hers and that she was unaware of the transaction until she received a telephone call from Boatmen’s advising her that Mr. Eisenbeis’ note was in default and that they were looking to the security for payment.

The notary public who purported to take the acknowledgements was the sister of Mr. Eisenbeis. She testified that she was not present when the assignments were executed. She signed as notary at the request of her brother who brought the forms to her at home.

There was sufficient substantial evidence for the court to believe that through the machinations of Eisenbeis the signature of plaintiff had been forged. Mr. Ei-senbeis was the only person who professed to have seen her sign the assignments. He testified however that plaintiff and Mrs. Shady were together in plaintiff’s home when they signed the documents. This is in direct conflict with Mrs. Shady’s testimony. The court could also believe that the seed of Mrs. Shady’s belief that plaintiff [359]*359had agreed to execute the documents was planted by Mr. Eisenbeis.

The expert’s opinion carries no greater weight than the testimony of other witnesses. The court could have found that the signature of “Marian J. Wulfert,” appearing on the documents, was made of slow awkward pen movements, typical features of a forgery.

The trial court’s findings are supported by substantial evidence.

It is conceded by Boatmen’s that the certificates of deposit are not in the form to create a joint tenancy. The evidence establishes that the certificates of deposit were purchased by plaintiff with her money and that Mr. and Mrs. A1 Shady had no interest in these instruments and are named in them solely for convenience. Plaintiff was the owner of the account and she alone could assign the certificates of deposit. Inasmuch as she did not sign the purported assignments, no assignment of the certificates of deposit was made. See Barnes v. Bank of Bourbon, 619 S.W.2d 906, 909[2] (Mo.App.1981).

We next consider the matter of whether the signature of Mrs. Shady alone was sufficient to assign the savings account. The trial court found and concluded that there was a tenancy by the entirety as between A1 Shady and Mrs.

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671 S.W.2d 355, 1984 Mo. App. LEXIS 3679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wulfert-v-boatmens-bank-of-jefferson-county-moctapp-1984.