Bell v. Johnson

• Decision Date: 06 July 1935
• Docket Number: 32394.
• Citation: 46 P.2d 886,142 Kan. 360
• Parties: BELL v. JOHNSON et al.
• Court: Kansas Supreme Court

46 P.2d 886

142 Kan. 360

BELL v. JOHNSON et al.

No. 32394.

Supreme Court of Kansas

July 6, 1935

Syllabus by the Court.

In considering demurrer to evidence, court should consider only facts and inferences favorable to plaintiff, and must accept as true all portions of testimony which tend to prove allegations of plaintiff's petition, but, where plaintiff personally testifies to state of facts which clearly precludes his recovery, plaintiff is bound thereby.

Bank teller held not entitled to recover money from receiver of bank which became insolvent on theory that teller made loan to bank, notwithstanding estoppel was not pleaded in receiver's answer, where teller's own testimony showed that he removed certain cash item and put in bank in lieu thereof a sum of money for purpose of deceiving bank commissioner.

1. Following Durham v. Carbon Coal & Min. Co., 22 Kan 232, it is held that, "where testimony is given by a party, no wrong will ordinarily be done such party if the testimony so given be accepted as true."

2. Where the plaintiff, who is the only witness in his behalf testifies to a state of facts which precludes his recovery the effect cannot be avoided, and he is bound thereby.

3. Where the testimony of the plaintiff, who was a teller in a bank, shows that he removed a certain cash item and put in the bank in lieu thereof a sum of money for the purpose of deceiving the bank commissioner, he is not entitled to recover the moneys on the theory he had made a loan to the bank, and a demurrer thereto should be sustained; it being immaterial under the circumstances that estoppel is not pleaded.

Appeal from District Court, Wyandotte County, Division No. 3; Wm. H McCamish, Judge.

Action by F. E. Bell against Charles W. Johnson, receiver of the Armourdale State Bank, Kansas City, and others, wherein named defendant filed a cross-petition. From a judgment for plaintiff, defendants appeal.

Reversed and remanded, with instructions.

C. A. Bowman, of Kansas City, and Braden C. Johnston, of Marion, for appellant.

Errett P. Scrivner and Hugh E. Brown field, both of Kansas City, for appellee.

THIELE Justice.

This was an action to recover moneys loaned to a bank which failed after the claimed loan was made.

The cause was tried on amended pleadings, which, as far as it is necessary to note, alleged that on October 31, 193, plaintiff loaned the bank $1,250; that interest had been paid to April 28, 1931; that $250 had been paid on the principal; and that there was due $1,000 and interest.

The answer alleged that the bank was placed in receivership on June 5, 1931, and denied that plaintiff loaned the bank any money; that the bank had paid any interest or any payment on the claimed loan. By way of cross-petition, defendant sought to recover from plaintiff his statutory liability as a stockholder. We need not notice the cross-petition nor the plaintiff's reply.

At the conclusion of plaintiff's case in chief, defendants demurred to the evidence on the ground that no cause of action was proved. This demurrer was overruled, and the trial proceeded and resulted in a verdict by the jury in favor of plaintiff for $1,065, and judgment was rendered accordingly that Charles W. Johnson, as receiver of the failed bank, issue and deliver to plaintiff a receiver's certificate for that amount, and pay the costs. His motion for a new trial was denied, and he appeals, assigning as error the trial court's rulings on the demurrer to the evidence and on the motion for a new trial.

Plaintiff appears to have been the only witness in his case in chief. He testified that he had been engaged in the banking business at various places in Kansas from 1913 to the time of the matters here detailed, except for a time when he was in military service. He became a teller in the Armourdale State Bank in May, 1930. Henry Daniels was president of the bank at the time and seems to have been so until it failed and was taken in charge by the bank commissioner on June 5, 1931. On or about September 1, 1930, Daniels came into the cage which plaintiff ran and took out some cash and in lieu placed a paper slip designated item No. 3. This paper was a blank check form, on the reverse side of which was a written memorandum:

"9/2/30

"J. W. Burke

"Item #3 $1,250.00"

This was carried as a cash item for nearly two months. On or about October 30, 1930, plaintiff had a conversation with Daniels; his statement being: "Q. State what that conversation was? A. I told Mr. Daniels that that item had been in the bank for a long time and it looked to me like that we would probably be ready for an examination almost any time and that item should be arranged for and taken out. He said, yes it should. He wanted to know if I could make some kind of arrangements to take this up temporarily for the bank and that the bank would pay the interest on the money. I told him I didn't have any money, but I would try and see if I couldn't arrange to take this up in order to accommodate the bank. He said he would appreciate if I could, and I went to the Commercial National and asked them if I could borrow some money. They said, well what kind of a statement can you make; I said, well I can make the statement, but it really isn't much good, I really don't have any cash, but I would like to borrow this money for this purpose of taking up this item. They loaned me the money."

He further testified he placed the money in the drawer and took out the item. The item shows also

"Cancelled

"Oct 31 1930

"The Armourdale State Bank

"Kansas City, Kansas"

The note to the Commercial National Bank was a demand note, and under its ruling every sixty days it asked for interest or payment; that each sixty days plaintiff received a notice from that bank he placed the item back in the drawer, took $1,250 in cash, and went to the Commercial Bank, "for the reason that if they were going to demand payment of the note, I had the money to pay it with. I did that each sixty days from the time that note was made at the Commercial National until the Bank closed."

On cross-examination he stated the item was good, it represented $1,250, and he kept it and put it in the drawer when he took out $1,250 to go to the Commercial National Bank, and, when he put the money back, he took out the item. In explaining the matter, he stated he was asked by Daniels if he would not take up the item temporarily for the bank; that the purpose in taking out the item was that it was a very old item; that Daniels did not want it in there. He repeatedly gave that as the reason for substituting the cash for the item. Efforts by defendant's counsel to get any further explanation were frustrated by objection which the court sustained, but thereafter the following questions were asked and answers given:

"Q. All right, then upon your initiative, as you testified, in order to have this item out of your cage when the state banking authorities might come around to examine the bank, you suggested to Mr. Daniels that item be taken out, is that your testimony on your direct examination or not? A. Yes, I asked--I suggested the item be taken out.

"Q. And you kept that item, did you? A. Yes, sir; that represented $1,250.00.

"Q. You had been in the banking business about 17 years before you went to the Armourdale State Bank? A. Yes.

"Q. And you now testify that you personally loaned the Armourdale State Bank $1250.00? A. Yes, I did.

"Q. Did you have any evidence of that loan from the Armourdale State Bank--any evidence given to you by the Armourdale State Bank that you had made them a loan? A. Well, I had the item.

"Q. You had this cancelled item? A. Yes.

"Q. And that is something that you took out of your own cage yourself? A. Yes, in lieu of that put in the cash."

Plaintiff further testified that he kept the item in his personal possession except at the sixty-day intervals when he put it in the drawer and took out $1,250 and went to the Commercial National Bank.

Did the court err in overruling the demurrer to the above evidence?

It may be observed that plaintiff instituted the action by claiming that he loaned money to the bank, and that the bank denied a loan had been made, and by way of cross-petition set up a claim for stockholder's liability. Plaintiff's reply denied he was a stockholder. Appellee seeks to support the trial court's ruling partly on the ground that the reasons urged why the demurrer should have been sustained vary from the theory of defense as presented by the answer in that estoppel was not pleaded but is now relied on. Appellee urges further that as against a demurrer every inference is to be resolved favorably to the plaintiff; that his honesty and good faith are presumed, and that, if there are any contradictions even in his own testimony, the demurrer should have been overruled. It may be conceded that as an abstract proposition the latter contention is correct. The rule is that, in considering a demurrer to evidence, the court should consider only facts and inferences favorable to plaintiff, James v. Grigsby, 114 Kan. 627, 220 P. 267, and that the court must consider as true all portions of the testimony which tend to prove the allegations of plaintiff's petition, giving plaintiff the benefit of all inferences, Windus v. Bodecker, 132 Kan. 857, 858, 297 P. 702, and that in ruling on a demurrer ...