Blomberg v. The State Bank of Ogden

• Decision Date: 06 June 1925
• Docket Number: 25,741
• Citation: Blomberg v. The State Bank of Ogden, 241 P. 242, 118 Kan. 688 (Kan. 1925)
• Parties: H. C. BLOMBERG, Appellant, v. THE STATE BANK OF OGDEN, Appellee
• Court: Kansas Supreme Court

241 P. 242

118 Kan. 688

H. C. BLOMBERG, Appellant, v. THE STATE BANK OF OGDEN, Appellee

No. 25,741

Supreme Court of Kansas

June 6, 1925

Decided January, 1925.

Appeal from Riley district court, FRED R. SMITH, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Review--Ruling on Demurrer to Evidence. A motion for a new trial is not requisite to appellate review where the court sustains a demurrer to plaintiff's evidence--following Wagner v. Railway Co., 73 Kan. 283, 85 P. 299.

2. CONTRACTS--Evidence--Consummation. In an action to recover on account of the alleged breach of a bank's contract to keep insured a customer's bonds deposited with it for safe-keeping, the proceedings considered, and held, the evidence and circumstances were sufficient to require submission to the jury on the question of whether a contract was consummated.

3. EVIDENCE--Parol Evidence Affecting Writing--Receipts. The receipts given by the defendant to plaintiff were not such written contracts as would preclude the introduction of evidence showing the intent of the parties.

4. BANKS AND BANKING--Officers--Scope of Employment--Agreements Ultra Vires. The acts of the cashier of a bank in accepting bonds for safe-keeping, with an agreement to insure, were within the scope of his employment, and the agreement to insure was not ultra vires.

Jas. V. Humphrey, and Arthur S. Humphrey, both of Junction City, for the appellant.

Hal E. Harlan, and A. M. Johnston, both of Manhattan, for the appellee.

Hopkins J. Johnston, C. J., not sitting.

OPINION

HOPKINS, J.:

The action was one to recover on account of the alleged breach of a bank's contract to keep insured a customer's bonds, deposited with it for safe-keeping. The defendant prevailed and plaintiff appeals.

The plaintiff owned $ 1,000 in Liberty bonds which he kept in a safety deposit box in the defendant bank. On and prior to November 16, 1922, he talked with the defendant's cashier with reference to taking the bonds from his safety deposit box and depositing them with the defendant for safe-keeping. There was testimony that the cashier told him he could deposit the bonds with the bank for safe-keeping, because they would then be put in the bank's safe, and that everything kept in the safe was fully covered by insurance. He asked if he would be required to pay any part of the insurance and was told that he would not, as the bank did that to protect its customers; that he need not register the bonds, as the insurance protected them. He thereupon deposited the bonds with the bank for safe-keeping. On three subsequent occasions he deposited, for safekeeping, additional securities under the same arrangement, until his deposits aggregated $ 4,000. He was given receipts on the different occasions, the first of which reads:

"R. W. G. 6669.

THE STATE BANK OF OGDEN.

OGDEN, RILEY COUNTY, KANSAS, Nov. 16, 1922.

Received of H. C. Bloomberg One Thousand in government bonds for safekeeping.

THE STATE BANK OF OGDEN,

$ 1,000.00.

R. MCCHESNEY, Cashier."

The other receipts were similar in form.

On November 8, 1923, burglars blew the bank safe and took cash and securities of the value of $ 16,000. Plaintiff's securities were among those stolen. The safety deposit boxes were not molested. The day after the burglary the cashier told plaintiff not to worry, that everything was insured. It developed, however, that the bank's insurance policy was for only $ 6,000. The cashier stated that he "thought he had enough insurance, and did not know he had that many bonds." The bank sought to prorate the insurance money among its customers, and refused to pay plaintiff more than his pro rata share ($ 1,500).

The cashier testified that he was the active executive officer who managed the bank from day to day and dealt with the customers, and that the directors held only four meetings a year; that a record of plaintiff's securities was kept in a ledger with the record of the securities of the other customers deposited for safe-keeping, and that this book was accessible to the directors. This record had been kept for three years. The bank had been accustomed to take deposits of bonds for safe-keeping ever since the Liberty loan drives started--a matter of five years. The insurance policy to protect such deposits had been carried about three years.

A demurrer to plaintiff's evidence was first overruled, but after both parties had rested the court changed its ruling and concluded that plaintiff had not proved a cause of action on his contract, declined to submit the case to the jury, but directed a juryman to sign, as foreman, a verdict awarding plaintiff what was agreed to be due him from the proceeds of the insurance ($ 1,500).

The plaintiff contends that the court erred in deciding, as upon demurrer, that the evidence of plaintiff was insufficient to prove a cause of action in favor of plaintiff and against defendant on the oral contract set forth in the petition and the breach thereof by defendant, and in adjudging a nonsuit against plaintiff on the claims set forth in his petition other than for his admitted portion of the proceeds from insurance collected for plaintiff and others.

The defendant contends that the plaintiff is concluded because he filed no motion for a new trial.

Plaintiff's petition set out two claims, one upon oral contract to keep the plaintiff's bonds insured for $ 4,066.71, and one for money had and received in the sum of $ 1,500, this being plaintiff's share of the proceeds from insurance. The answer admitted that plaintiff was entitled to his pro rata share of the insurance, but denied the making of the contract, thereby contesting the first claim.

The journal entry of judgment, in part, reads:

"The court finds that plaintiff is entitled to his pro rata share of the said insurance proceeds collected by defendant as aforesaid, the same amounting by agreement of the parties to $ 1,500, but the court finds that the evidence of the plaintiff is insufficient to prove a cause of action in favor of plaintiff and against defendant on the claims set forth in plaintiff's petition other than for said portion of said insurance proceeds. . . . Plaintiff requested the court to submit to the jury, under appropriate instructions, the issues presented by the pleadings involving the remainder of plaintiff's claim of $ 4,066.77, which the court, after due consideration, refused to do, to which plaintiff excepted; this request being made prior to the peremptory instructions to the jury as aforesaid."

From which it appears that the court distinguished and dealt separately with the two claims as though they were two causes of action. It directed a verdict of $ 1,500 for plaintiff's conceded portion of the insurance, but concluded that his evidence was insufficient to prove a cause of...