Clapp v. Johnson
| Decision Date | 25 May 1936 |
| Docket Number | 26006. |
| Citation | 57 P.2d 1235,186 Wash. 327 |
| Parties | CLAPP v. JOHNSON. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Grant County; Wm. C. Brown, Judge.
Action by William M. Clapp against L. E. Johnson, receiver of the First National Bank of Ephrata. From the judgment, the plaintiff appeals.
Reversed and remanded, with directions.
Joseph Wicks, of Grand Coulee, and William M Clapp, of Ephrata, for appellant.
Crollard & O'Connor, of Wenatchee, for respondent.
This action was brought for the purpose of recovering damages on account of the conversion of a promissory note. The defendant filed an answer and cross-complaint in which he asked that one W. D. Platt be made a party. This request was granted over the objection of the plaintiff. The trial was to the court without a jury, and resulted in findings of fact from which the court concluded that the plaintiff was entitled to damages in the sum of $1 and the return of the note. From the judgment entered in accordance with the findings and conclusions, the plaintiff appealed.
The First National Bank of Ephrata was engaged in the banking business at that place. The appellant, William M. Clapp, was a resident of the same town, and was a customer of the bank. September 2, 1932, the appellant borrowed from the bank $350 due six months after date, and at the same time, as collateral to that note, deposited with the bank a note dated September 2, 1932, for the sum of $350, due two years after date. This note was signed by P. H. Callahan and A. A Heidenreich, as makers, and was payable to W. D. Platt, who indorsed it on the back thereof.
In December, 1932, the bank having become insolvent, the respondent, L. E. Johnson, was named as receiver and put in charge for the purpose of liquidating it. About March 1 1933, the respondent transferred from the appellant's account in the bank sufficient money to pay his note, and returned the note to him. At the same time the respondent's clerk or assistant returned the other note to W. D. Platt. As soon as the appellant learned of the transfer of sufficient funds from his account to pay his note, and the collateral note had not been returned to him, he went to the respondent and demanded this latter note, and was informed that it had been returned to Platt, the payee. Thereafter, on two or three occasions, the respondent requested Platt to return the note to the bank, and he promised to do so, but never did. There was no record in the bank of a collateral note, and the only information that the respondent had was that it was found in the collection pouch. The bank had kept no collection register, and the collateral note had not been attached to the principal note given by the appellant. About two years after the appellant's note had been returned to him and the other note had been returned to Platt, the present action was begun for the purpose, as above stated, of recovering damages for the conversion of the collateral note. Platt did not appear upon the trial, but his attorney produced the note and it was introduced in evidence.
The question presented upon the appeal is whether the respondent, having acted in good faith in returning the collateral note to Platt, the payee, can be held for the conversion thereof, since the conversion was not wilful.
It is an established rule in the courts of England, followed to some extent in this country, that in actions for conversion when the taking is not willful, the court may, in its discretion, permit the defendant to surrender back the property and pay the actual damage for the taking and detention of it. Whittler v. Sharp, 43 Utah, 419, 135 P. 112, 49 L.R.A. (N.S.) 931, note at page 935. Some of the courts of this country which have followed the English rule apply it where the property has within a reasonable time been returned to the person entitled to the possession. Sutton v. Great Northern R. Co., 99 Minn. 376, ...
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