Davisson v. Citizens' Nat. Bank of Roswell

• Decision Date: 30 August 1910
• Citation: 113 P. 598,15 N.M. 680,1910 -NMSC- 062
• Parties: DAVISSON et al. v. CITIZENS' NAT. BANK OF ROSWELL.
• Court: New Mexico Supreme Court

113 P. 598

15 N.M. 680, 1910 -NMSC- 062

DAVISSON et al. v. CITIZENS' NAT. BANK OF ROSWELL.

Supreme Court of New Mexico

August 30, 1910

Rehearing Denied Jan. 7, 1911.

Syllabus by the Court.

Under the circumstances set out in the statement of facts, the appellee as holder of an escrow was not justified in delivering it to either party.

Appeal from District Court, Chaves County; before Justice W. H Pope.

Action by George A. Davisson against the Citizens' National Bank of Roswell and others. There was a judgment for the defendant Bank, and plaintiff and the other defendants appeal. Reversed and remanded, with instructions.

W. A Dunn, for appellant Geo. A. Davisson. Ed S. Gibbany, for appellants Etta Owens and others. W. C. Reid and R. E. Lund for appellee Citizens' National Bank.

MECHEM J. (after stating the facts as above).

The court below held that the bank's liability was fixed and limited by the memorandum above mentioned, and that, as no abstract "approved by purchaser's attorney" was presented to the bank on or prior to September 10th, after said date "it became the duty of the bank to deliver the said check or its proceeds to C. C. Berryman, one of the parties to the escrow agreement, upon demand." Now, it is admitted that the bank was acting as agent for both parties as far as the escrow itself was concerned, and the question is: Did the bank act as it should have acted, or did it fail in its duty to either party?

Admitting the correctness of this holding for the sake of argument, the question then is, Did the bank fulfill its duty to the appellants as fixed by the memorandum? To this question we think the reply should be in the negative, for the reason that nowhere in the memorandum was the bank authorized to make any delivery of any paper, money, or anything. Had the appellants both agreed that Mr. Berryman should have his money or check back, then the bank would have been relieved from any liability, but it owed just as much duty to the appellants as it did to Berryman, and should not have taken sides, and, when it failed to secure appellants' consent it should have held the escrow and let the parties either come to some agreement among themselves or appeal to the courts, when the appellee could have interpleaded the money into court and secured its acquittance. However, it took sides in this matter, and will be held, as it should be, to have acted at its peril and to be...