Deal v. Bank of Smithville
| Decision Date | 13 June 1932 |
| Docket Number | 17307 |
| Citation | 52 S.W.2d 201 |
| Parties | DEAL v. BANK OF SMITHVILLE. |
| Court | Kansas Court of Appeals |
Rehearing Denied July 5, 1932.
Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.
“ Not to be officially published.”
Proceeding by Dudley A. Deal against the Bank of Smithville in liquidation, in the hands of S. L. Cantley, Commissioner of Finance. From an adverse judgment, plaintiff appeals.
Reversed and remanded, with direction.
Jay B. Wilson and Terrence Riley, both of Platte City, for appellant.
Leslie E. Bates, of Kansas City, for respondent.
Plaintiff seeks the allowance of a preferred demand against the assets of defendant bank in the hands of the commissioner of finance. At the time of the events forming the basis of the claim, plaintiff was the collector of revenue for Platte county. After preliminary allegations as to the character of the parties, the closing of the bank, and the custody of its assets by the commissioner, the petition charges that during the month of December, 1930, and the early part of January, 1931, upon request of the president and cashier of the bank, the collector sent certain tax receipts to the bank, with instructions to collect and remit, pursuant to an agreement between plaintiff and the president of the bank that the collections would be made and the proceeds remitted to the plaintiff; that said officers collected upon said tax receipts the sum of $4,400.10, and in violation of the agreement said money was not remitted, but was deposited in the bank to the credit of plaintiff without his knowledge, and of this fact he did not learn until after the bank closed; that said sum of money remained in said bank and passed to the commissioner, who now has sufficient funds to pay the claim.
The answer, with a general denial, admits that the bank is in the hands of the commissioner and his deputy; that its assets are in process of liquidation; that "plaintiff has on deposit in the bank, and did at the time it was placed in the hands of the state finance department, the sum of $4400.10"; that said bank is indebted to plaintiff in said sum, and requests that the claim be denied preference, but allowed as a common demand.
At the trial it was agreed that the bank was a corporation organized under the laws of the state of Missouri, doing a banking business in the city of Smithville; that it was placed in the hands of the commissioner on January 14, 1931, for liquidation; that its affairs are still in his custody and control; that the bank and its officers did collect the sum of $4,400.10 on tax receipts, and deposited the same to the credit of the plaintiff; that said sum of money is a part of the assets transferred to the commissioner, who is now possessed of sufficient funds to pay the claim.
It appears from the evidence that as a matter of accommodation and convenience plaintiff, as collector of the county, had been accustomed, upon request, to forward to various banks tax receipts to be delivered to the taxpayers when the banks collected the money. The banks, when ordering or requesting receipts for taxes desired to be paid at the bank, used printed forms for that purpose which were supplied by the collector. The plaintiff had been the official collector of his county for a number of years, and in times past had sent to defendant a large number of such items upon which collections had been made, and the sums so collected had been accounted for by the bank. There had been a final settlement between the bank and the collector about the middle of March, 1930.
The plaintiff testified that about the 1st of December, 1930, he had conversations with the president of the bank in reference to the collection of taxes for that year, and that the president stated that, owing to conditions at the time, he would not order the tax receipts as usual, that the bank was not going to pay for any tax receipts, and that before he would order any, the money would have to be there, or assurance of the payment would have to be made before he ordered any at all, and that he did not desire to order a large amount as he had usually done. A part of the testimony of plaintiff follows:
"Q. What did he say with regard to the collection and remittances?
A. Well, he said that he would have the money collected from the parties before he ordered the receipts, have the money for them.
By the Court: What did he say he would do with the money?
A. He said he would remit it to the office on collection. However, he stated that he would wait until he made several collections for convenience.
By the Court: Did he ever remit any?
A. No, sir.
By the Court: How long did that go on without any remittance?
A. During the month of December.
By the Court: Did you ever remonstrate with him or anyone?
A. No, sir.
By the Court: About not sending any in?
A. No, sir, we were pretty busy through the month of December and I never went to see them at all.
Q. I’ll get you to state whether or not you authorized anyone, any officer of the Bank of Smithville, to open an account there for you?
A. No, sir.
Q. Did you ever authorize any deposit of any kind there?
A. No, sir.
Q. In your name as collector or individually?
A. No, sir.
By the Court: If you knew the money hadn’t been remitted, Mr. Deal, where did you think that money was?
A. Well, I didn’t know whether he had collected on them or not. I didn’t know whether they had been paid at the bank nor how many.
By the Court: You didn’t inquire?
A. No, sir, I don’t believe I did. I might have written a letter the last of December inquiring about it, but as I remember it, I don’t believe I had written to him.
Q. I’ll get you to state whether or not you ever received any word from the Bank of Smithville during the month of December or January, or any time, what had been done with these tax receipts or if they had collected, what had become of the money?
A. No, sir.
Q. Did you ever receive any word from anyone in regard to it?
A. No, sir, not that I recall.
Q. Did you ever receive any statement from the bank that you had a credit there of so much money as collector?
A. No, sir.
Q. Or. that these tax receipts that had been collected, had been deposited to your credit?
A. No, sir."
December 10, 1930, on request of the bank, the collector transmitted to the bank thirty-two receipts for as many individuals and in the total amount of $3,149.30. They were listed in his letter, at the close of which the collector stated: "I charge you with the above amount." On the 15th and 24th of December other receipts were forwarded to the bank as they were ordered in the amounts of $805.30 and $303.25; and on January 12, 1931, other receipts to the amount of $303.64 were also sent. At the conclusion of each of these letters of transmission, the collector stated: "I charge your account with the above amount." A day or two before the bank closed it returned to the collector uncollected tax receipts to the amount of $201.40. Plaintiff was asked what record he made of this transaction, and stated: "I made a record in the record book of the amount of receipts returned from over there." "I credited it to their account with the amount returned."
Over the objection of plaintiff, certain records and testimony were offered in evidence tending to show the course of dealing in years past between the collector and the bank in reference to the collection of taxes and the method of handling the account by the bank and by the collector. The defendant offered in evidence ledger sheets and a statement under the name of Dudley A. Deal, collector, purporting to contain a list of deposits from December 18, 1923, to January 13, 1931. Plaintiff contends that these exhibits were not received in evidence. The record shows they were offered in evidence, but does not show they were admitted in evidence; neither does any objection appear to the offer except previous objections to testimony and records of past transactions. Four checks drawn by the collector upon the bank to the order of the county treasurer transferring to him the amount which the bank had collected were also offered in evidence. These checks show a transfer of funds collected for the years 1927, 1928, and 1929. The last transfer thus made was March 15, 1930, and apparently covered all collections made by the bank, and, according to the bank’s records, the account was then balanced. There was no further entry in the records of the bank until December 16, 1930, when the bank again commenced to enter as deposits individual collections made by it, and these entries continued from time to time until and including January 13, 1931. Plaintiff testified that, if remittances had not been made when his settlements were due, he would draw on the bank for the amount that should have been paid, and that he did not know of any deposit or how the bank carried the account.
The testimony of the plaintiff and all the evidence on the subject indicate that he never at any time authorized the bank to open an account in his name or to make deposits in his behalf in the bank of the collections made, and that he did not know that the bank was handling the matter in that way. The collector made his own records by keeping account of the total amount of tax receipts ordered and sent to the bank and of the amount of receipts returned uncollected and of payments made by the bank.
Testimony of one witness on behalf of defendant, who was the assistant cashier, tended to show in reference to past transactions that all of the collections made by the bank and deposited in the name of the collector had been withdrawn upon his checks. The testimony of this witness, as well as that of the cashier and the president...
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