Carlson v. Kies

• Decision Date: 28 August 1913
• Parties: CARLSON et al. v. KIES.
• Court: Washington Supreme Court

134 P. 808

75 Wash. 171

CARLSON et al. v. KIES.

Supreme Court of Washington

August 28, 1913

Department 1. Appeal from Superior Court, Clarke County; Donald McMaster, Judge.

Action by Johanna Paulina Carlson and another against M. B. Kies, as receiver of the Commercial Bank of Vancouver, Wash. Judgment for plaintiffs, and defendant appeals. Affirmed.

H. L Parcel, of Vancouver, for appellant.

McMaster Hall & Drowley, of Vancouver, and George S. Shepherd, of Portland, Or., for respondents.

GOSE J.

This is a suit to recover of the receiver of the Commercial Bank of Vancouver, Wash., a sum of money which it is alleged was placed in that bank as a special deposit a few days before it closed its doors. The receiver has appealed from an adverse judgment.

The uncontroverted facts are that Fred Olson, the original plaintiff, was administrator of the estate of Carl Peter Johnson and the attorney in fact for Johanna Paulina Carlson and Nora Danielson, his heirs at law. As such attorney in fact he had in his possession on the 14th day of December 1910, in money belonging to the heirs, the sum of $3,070.60. One of the heirs resided in Sweden and the other in the state of New York. Desiring to hold the money until the return of proper vouchers which he had forwarded to them, he placed the money in the Commercial Bank and received from it a receipt therefor written at his instance and signed by the cashier as follows: 'Vancouver, Wash., Dec. 14, 1910. Received of Fred Olson three thousand seventy & 60/100 dollars, to be held until receipts are received from heirs. Then same to be forwarded by bank draft. G. W. Daniels, Cashier. $3,070.60.' Margin. 'The Commercial Bank, Vancouver, Wash.' The money was commingled with the general funds of the bank. The bank closed its doors five days after receiving the money. The examiner then took charge of its affairs until a receiver was appointed. A few days after its suspension, Mr. Olson received the vouchers, presented the receipt, and demanded payment, which being refused, this action was commenced. As administrator of the Johnson estate he had done business with the same bank presumably in the usual way. The cashier admitted that he knew that the money belonged to the Johnson heirs. Mr. Olson died pending the suit and the heirs were substituted as plaintiffs. The case was tried to the court. In addition to the facts stated, the court found that the money evidenced by the receipt was placed in the bank for safe-keeping pending the receipt of the vouchers when it was to have been forwarded to the heirs by bank drafts; that the bank commingled the money with its general funds; and that prior to the commencement of the action the receiver refused to comply with a demand for a return of the money. It was stipulated at the trial that, at the time of receiving the money in controversy and continuously thereafter until the bank closed its doors, it had on hand in cash not less than $13,000 which passed into possession of the receiver. These findings have abundant support in the record. Mr. Olson testified that he told the cashier that he desired to leave the money in the bank for safe-keeping pending the return of the vouchers, when he would purchase drafts for remittance to the heirs. The cashier admitted that he drew and delivered the receipt at the request of Mr. Olson. He further said that he at the same time drew a certificate of deposit which remained in the bank and which was tendered to Olson after the examiner had taken charge of the affairs of the bank. Olson testified that nothing was said about a certificate of deposit at the time the money was placed in the bank, but that it was offered him in exchange for the receipt after the examiner had assumed control.

A deposit in a bank is either general or special. Where a general deposit is made, it is either credited to the account of a depositor subject to his check or evidenced by a demand or time certificate. The title to the deposit in such cases passes to the bank and it becomes the debtor of the depositor. On the other hand, when a bank accepts a special deposit it becomes a trustee of the depositor and holds the money subject to the trust. The receipt itself affords strong, if not conclusive, evidence of a special deposit. It shows that the money was placed in the bank for a special purpose. Fortified by the evidence of the depositor and the admitted circumstances here present, it is obvious that both parties to the transaction intended to make a special and not a general deposit. It follows, therefore, that the bank holds the money, not as a general debtor, but in a fiduciary capacity. 5 Cyc. 514, 515; Blake v. State Savings Bank, 12 Wash. 619, 41 P. 909; Fogg v. Tyler, 109 Me. 109, 82 A. 1008, 39 L. R. A. (N. S.) 847; Anderson v. P. Bank, 112 Cal. 598, 44 P. 1063, 32 L. R. A. 479, 53 Am. St. Rep. 228; Shopert v. Indiana, etc., 41 Ind.App. 474, 83 N.E. 515; Covey v. Cannon (Ark.) 149 S.W. 514; Peak v. Ellicott, 30 Kan. 156, 1 P. 499, 46 Am. Rep. 90; Myers v. Board of Education, 51 Kan. 87, 32 P. 658, 37 Am. St. Rep. 263; Dolph v. Cross, 153 Iowa, 289, 133 N.W. 669; People v. City Bank of Rochester, 96 N.Y. 33; Massey v. Fisher (C. C.) 62 F. 958.

'A deposit is not special unless made so by the depositor or unless made in a particular capacity.' 'In using deposits made for the purpose of having them applied to a particular purpose, the bank acts as the agent of the depositor, and, if it failed to apply it at all or misapply it, it can be recovered as a trust deposit.' 5 Cyc. 514, 515. This view was recognized by this court in the Blake Case, where it was said: 'If it had been delivered to the bank, not as a general deposit, but for a particular purpose, it would have been a trust fund in the first instance, and the title would not have passed to the bank; but even then it could not have been recovered without showing that it had gone into the hands of the receiver.'

In the Anderson Case money deposited in the bank as indemnity for its furnishing bail for the depositor was held to be a special deposit and recoverable as such, notiwhtstanding the fact that it was commingled with the general funds of the bank but without the knowledge of depositor.

In Peak v. Ellicott the plaintiff delivered money to the cashier of the bank for the purpose of paying his note then held by a...