Blake v. State Sav. Bank

• Decision Date: 27 September 1895
• Parties: BLAKE v. STATE SAV. BANK ET AL.
• Court: Washington Supreme Court

41 P. 909

12 Wash. 619

BLAKE v. STATE SAV. BANK ET AL.

Supreme Court of Washington

September 27, 1895

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by J. W. Blake against State Savings Bank for the appointment of a receiver. W. G. Houser filed a petition therein to rescind a contract made with said bank. A demurrer to the petition was sustained, and said Houser appeals. Affirmed.

Lueders & Leo, for appellant.

Stiles Stevens & Tillinghast, for respondent.

ANDERS J.

This was a proceeding instituted by the appellant, W. G. Houser to rescind a contract of deposit with the State Savings Bank and to secure an order of the court requiring the receiver of said bank to deliver to appellant a certain balance alleged to be due him from the bank. On May 11, 1894 the State Savings Bank, having become insolvent, suspended business, and on the following day, at the suit of J. W. Blake, one J. S. Whitehouse was appointed receiver, and immediately took possession of the assets of the bank. Thereafter the appellant filed a petition in the case of Blake against the bank, setting up, among other things, which it is not necessary to mention, that said State Savings Bank was, on the 7th, 8th, 9th, and 10th days of May, 1894, and long prior thereto, in failing circumstances, hopelessly insolvent, and unable to meet its liabilities and obligations; and on said May 7, 1894, said bank and its president and cashier became and were well aware of its said failing circumstances and hopeless insolvency; that during all of said month of May, 1894, and long prior thereto, petitioner was a regular depositor with and a customer of said bank, and on April 30, 1894, had on deposit to his credit therein the sum of $443.46; that from and after said April 30, 1894, to and including May 10, 1894, he made further deposits with said bank, amounting in all to the sum of $986.46; that during said month of May, 1894, and up to and including May 11, 1894, he drew against his credits and deposits in said bank his check and drafts in the total amount of $1,261.38, thereby leaving in said bank, when it suspended business, on May 11, 1894, a balance of $168.54 of the different deposits by him made therewith on and between May 7 and May 10, 1894; that during all the time petitioner dealt with said bank as aforesaid he was wholly unaware of its failing circumstances and insolvency, and without means of informing himself of its condition, and always, until its suspension, fully believed said bank to be solvent; that, although said bank and its said officers on said May 7, 1894, became and were aware of the insolvency thereof they, intending and contriving to cheat and defraud petitioner, wrongfully withheld and concealed from him all knowledge and information of its insolvent condition, and, intending and contriving to cheat and defraud petitioner, did wrongfully and fraudulently receive and accept from him the various sums by him offered as deposits on and between May 7 and May 11, 1894; that said bank, although requested by petitioner to return to him said balance of money so deposited as aforesaid, has failed, refused, and neglected to return the same, or any part thereof; that on May 11, 1894, and while said bank still held the sum of $168.54 of the money so obtained from petitioner, said bank suspended payment, and discontinued business, and openly announced its insolvency; that one J. S. Whitehouse was, by the order of the court, duly appointed as receiver of said bank to wind up the affairs thereof, and on May 12, 1894, said Whitehouse duly qualified and entered upon the discharge of his duties as such receiver, and did as such receiver, on the 12th day of May, 1894, take into and still retains in his possession said sum of $168.54, money of petitioner so received and obtained from petitioner as aforesaid; that petitioner has, since the appointment of said receiver, demanded of him the return of said money, to wit, said sum of $168.54, but said receiver has refused and declined to return the same, or any part thereof, to petitioner. The respondent interposed a general demurrer to this petition, which was sustained by the court, and, appellant declining to further plead, a judgment was entered, dismissing the petition, from which judgment the petitioner appealed to this court.

It is insisted on behalf of the respondent that this court has no jurisdiction to review the judgment of the superior court, because the amount involved is less than $200, and the true nature of the proceeding had was that of an action at law for money had and received. But, as it is not uncommon for courts to entertain suits in equity for such relief as is demanded in this proceeding, and as the petition purports to state a cause of action involving at least one question of equitable cognizance, we are not disposed to dismiss the appeal for want of jurisdiction.

It is also insisted that the petitioner should not have been allowed to present his claim against the receiver by petition, but should have been compelled to resort to an independent action, and it may be true that an ordinary action would have better subserved the interests of all parties than this proceeding. But the question does not appear to have been raised in the court below, and, besides, it seems that it is within the discretion of the court either to determine claims against a receiver by petition in the original action in which he was appointed or by an independent suit. 20 Am. & Eng. Enc. Law, p. 251.

The next question is, do the facts stated in the petition entitle the appellant to an order directing the respondent to pay over to him the full amount of...