Asher v. Sutton

• Decision Date: 03 January 1884
• Citation: 31 Kan. 286,1 P. 535
• Parties: H. B. ASHER, et al., v. MARY SUTTON
• Court: Kansas Supreme Court

1 P. 535

31 Kan. 286

H. B. ASHER, et al., v. MARY SUTTON

Supreme Court of Kansas

January 3, 1884

Error from Douglas District Court.

ACTION commenced February 23, 1880, by Mary Sutton, formerly Mary Butt, against H. B. Asher and William Asher, for the wrongful conversion of a safe. Trial January 11, 1881, by the court, a jury being waived. At the request of the parties, the court made the following findings of fact:

"1. That the Exchange bank, of Lawrence, Kansas, was a corporation, duly organized and existing under and by virtue of the laws of the state of Kansas, and doing business in the city of Lawrence; that said bank was the owner and in the possession of one Hall's burglar-proof safe; that said safe was used in the conduct of the business of said bank for the safe-keeping of its money and valuables; that said safe was worth the sum of one hundred and fifty dollars; that said bank became insolvent and ceased to do business on or about the 8th day of July, 1878; that at said time John W. McMillan was the president, and Chas. F. Haley, sr., was the cashier of said bank.

"2. Said Exchange bank was, at the time of its said failure, to wit, on or about the 8th day of July, 1878, indebted to Mary Sutton in the sum of about $ 300. Said J. W. McMillan, as president, and Chas. F. Haley, sr., as cashier, on or about the 11th day of October, 1878, executed and delivered to the said Mary Sutton a bill of sale of said safe, and attached thereto the corporate seal of said bank, and sold said safe to said Mary Sutton in payment of said indebtedness of $ 300 which said bill of sale is in words and figures as follows to wit:

'LAWRENCE KANSAS, October 11, 1878.--For value received, the Exchange bank of Lawrence hereby sells, transfers and assigns unto one Mary Butt, one burglar-proof Hall's safe, now in the vault of the building formerly occupied by the Exchange bank with the full right to enter said building and remove said safe from said vault and building at any time when desired, hereby giving to said Mary Butt possession of said safe; and said bank hereby warrants the title thereto to be free and unincumbered.

'In witness whereof, said Exchange bank has caused this bill of sale to be signed by its president and cashier, and the seal of said bank to be hereto affixed, on the day and date first above named.

(Signed) J. W. MCMILLAN, President Exchange Bank.

[Seal.] CHAS. F. HALEY, Cashier.

Lawrence, Douglas County, Kansas.'

"Said bill of sale was duly filed for record in the office of the register of deeds of Douglas county, on the 12th day of December, 1878, at page 90 of book of chattel mortgages. Said safe remained in the vault of said bank until the 10th day of February, 1880, when the defendant, H. B. Asher, as sheriff of said county, levied on said safe by virtue of an execution duly issued to him out of the clerk's office of the district court of Douglas county, on a certain judgment previously and duly recorded against said Exchange bank by one Edward Jones, a depositor therein. Said judgment was in full force and effect, unreversed, undischarged, and unsatisfied. Said safe was duly and legally sold by said sheriff under said execution.

"3. Said John W. McMillan as president, and Charles F. Haley, sr., as cashier of said bank, had never been authorized or directed by the board of directors of said bank to make said sale, or execute or deliver said bill of sale, or attach the corporate seal of said bank thereto, and that there had been no meeting of said board of directors for six months prior to the making of said bill of sale; but said McMillan and Haley had always conducted the business of the bank. Before the bringing of said suit, plaintiff demanded said safe from said defendants, and said defendants refused to give up said safe. Plaintiff's name was Mary Butt, on the said 10th day of October, 1878."

And thereon the court made the following conclusions of law:

"1. That said bill of sale conveyed all the right, title and interest of said bank in and to said safe to the plaintiff, and that she is the owner of same, and that the defendants unlawfully converted the property to their own use when they levied upon said safe, and that the said property was at the time of its conversion worth $ 150.

"2. That said plaintiff do have and recover of and from said defendants the sum of one hundred and fifty dollars, with interest from the tenth day of February, 1880, and her costs herein, taxed at $ ."

Judgment having been entered thereon, the defendants bring the case here.

Judgment reversed and cause remanded.

Harris & Harris, for plaintiffs in error.

George J. Barker, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The contention is, that neither the president nor the cashier of a bank organized under the laws of the state has the power virtute officii, to sell the safe for a debt of the bank, and therefore that the bill of sale executed October 11th, 1878, by the president and cashier of the Exchange...