Davis v. Seattle Nat. Bank

• Decision Date: 02 March 1898
• Parties: DAVIS v. SEATTLE NAT. BANK.
• Court: Washington Supreme Court

52 P. 526

19 Wash. 65

DAVIS v. SEATTLE NAT. BANK.

Supreme Court of Washington

March 2, 1898

Appeal from superior court, King county; O. Jacobs, Judge.

Action by W. H. Davis against the Seattle National Bank. From a judgment for plaintiff, defendant appeals. Reversed.

Preston Carr & Gilman, for appellant.

John E Humphries, Wm. E. Humphrey, and Edward P Edsen, for respondent.

SCOTT, C.J.

Plaintiff brought this action upon an assigned claim to recover for services performed by one Wheeler as an attorney at law for the Commercial National Bank of Seattle. On November 22 1894, said bank, desiring to retire from business, entered into an arrangement with the Seattle National Bank, the defendant here, whereby it transferred all its assets to this defendant, as security for moneys advanced by it to pay the indebtedness of the Commercial National Bank, as shown by its books, amounting to $68,576.44. It is not claimed that the books of the Commercial National Bank showed it to be indebted to the plaintiff for the services aforesaid. It was further provided in the agreement of transfer that said assets should secure to the Seattle National Bank interest at the rate of 8 per cent. per annum on said amount, and should also secure all sums that it might be called upon to pay for the Commercial National Bank; and, in case of an overplus, it was to be paid pro rata to the stockholders of the Commercial National Bank. The claim aforesaid was based upon services alleged to have been performed for the Commercial National Bank in a number of different actions, and it was contended by the plaintiff that, after the transfer of its assets to the defendant here, he continued to perform services in such actions for some months thereafter. The assets so transferred to this defendant included a note for $1,130, with interest given by said Wheeler to the Commercial National Bank, and also a claim for an overdraft of $813.34. Upon Wheeler's being asked to pay these amounts, he claimed an offset for the services aforesaid, and it appears that he rendered a statement therefor against both banks jointly. This will be referred to later. Thereafter the Seattle National Bank reassigned said claims to the Commercial National Bank for the purpose of bringing suit. The proceeds in case of a recovery, however, were to go to the Seattle National Bank as a part of the assets aforesaid, and for the purposes of the transfer. In said action Wheeler set up his claim for services as an offset or counterclaim. The reply contained a denial of the rendition of any such services or of any indebtedness therefor, so that the fact as to whether he had any claim for such services, or had performed the same, was directly in issue in said trial. Thereafter, during the pendency of said action, Wheeler assigned his claim to the plaintiff here, but the same was not withdrawn from the action aforesaid; and in its findings, the cause having been tried without a jury, the court found: "That the plaintiff was not, the 1st day of November, or at any other time, indebted to the defendant for services as an attorney rendered within three years last past, and for money paid to and for the use and benefit of the plaintiff, in the sum of $2,400, or in any other sum, or any sum at all, and that the defendant L. H. Wheeler is not entitled to recover anything from the plaintiff upon the cause of action set up in the first cross complaint contained in his third amended answer herein,"-and rendered judgment thereon as follows: "That the defendant L. H. Wheeler take nothing by either of the causes of action set up in the cross complaint in his third amended answer, and that the same and all matters contained in said cross complaint be and are hereby adjudged and determined, and that the plaintiff recover its costs and disbursements herein, and be entitled to execution."

One of the contentions of the defendant in this case is that this claim was barred by said judgment,...