Dearing v. Hockersmith

• Decision Date: 13 November 1913
• Citation: 25 Idaho 140,136 P. 994
• Court: Idaho Supreme Court
• Parties: ETTA DEARING, Appellant, v. J. W. HOCKERSMITH, GRANGEVILLE SAVINGS & TRUST COMPANY and F. L. LEONARD, Cashier, Respondents

136 P. 994

25 Idaho 140

ETTA DEARING, Appellant,
v.
J. W. HOCKERSMITH, GRANGEVILLE SAVINGS & TRUST COMPANY and F. L. LEONARD, Cashier, Respondents

Supreme Court of Idaho

November 13, 1913

CONSPIRACY-DEFINITION-PLEADING-SUFFICIENCY OF ANSWER.

1. Where a demurrer is filed to certain answers, and such demurrer assigns as grounds (1) that the answers do not state facts sufficient to constitute a defense in the action, (2) that the two answers and each of them are ambiguous, uncertain and unintelligible, and this court finds that the answers consist of denials and of affirmative matter which were proper defenses to the complaint, there was no error on the part of the trial court in overruling the demurrer.

2. Where D. draws a check in favor of H. and it is agreed between D. and H. that H. is to act as trustee and agent to draw the money and apply it for the purpose of paying a mortgage upon real property belonging to D., and H. presents the check to the bank for payment, and the bank pays such check, such payment is a cash discharge of D.'s deposit to the extent of the check drawn.

3. Where the record of the bank shows that a deposit on the 18th day of November was received by the bank from H., and said deposit includes different checks to different parties, among which was the check in controversy, and the bank credits all of said checks in the personal name of H. on his personal account with the bank made on that day, as a depositor and not as a trustee, and the evidence shows that there was nothing said at the time or at any other time that the sum so deposited should not be drawn by H. on his own personal check for such use as H. might determine to apply it to, nor that the bank was advised in any way that such deposit made that day should be applied to any particular purpose, and the trial court in his findings so found, the bank is justified when it pays on presentation of checks and charges the same against the deposit of H. until said deposit is exhausted. The court did not err in making a finding to that effect.

4. Referring to the allegations of the complaint in this case, it is alleged that H., the trust company, and L., the cashier of the trust company, acting in concert and without the knowledge of the plaintiff, combined, connived and conspired for the purpose of cheating and defrauding the plaintiff out of $625 by fraudulent statements [25 Idaho 141] made to her by L. and H. inducing the plaintiff to sign her name to the check on the trust company where she had deposited said money in the name of H. and made payable to him. We have recited in this opinion as briefly as we could the evidence directly connected with the deposit, and after careful consideration we hold that there is no evidence in this case, or any law when applied to the facts, which would subject the defendant bank or L. to any damage resulting from a conspiracy by defrauding plaintiff or misappropriating $625, or any sum, for the use or benefit of L. or anyone connected with the bank, for which they were under obligation to answer.

5. Where the evidence shows clearly that the preponderance of the evidence is with the defendants, under the rule of this court where the evidence is only indefinitely conflicting as to some fact which is not controlling as proof, and there is substantial evidence supporting the findings of fact by the trial court, the findings and decree entered in accordance therewith will not be disturbed.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

An action to recover the sum of $ 625 alleged to have been placed under the control of J. W. Hockersmith as trustee of appellant, claiming that Hockersmith and one Frank L. Leonard, cashier of the Grangeville Savings & Trust Company, combined, connived and conspired to appropriate and apply said sum to their own use. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

L. Vineyard, for Appellant.

In the absence of specific denials of a verified answer to a verified complaint, the answers would not raise a material issue under our statute. (Sec. 4183; United States v. Shoup, 2 Idaho 493, 21 P. 656.)

These answers stated no defense even had they been verified. (Boone on Code Pl., sec. 61; 31 Cyc. 87; Doll v. Good, 38 Cal. 287; Fitzgibbon v. Calvert, 39 Cal. 261.)

The findings excepted to do not respond to any issue in the pleadings, the same being against the admitted facts, and therefore of no effect. (Hayne, New Trial & Appeal, sec. 242, and authorities cited; Spelling, New Trial & Appellate Practice, sec. 591; Speegle v. Leese, 51 Cal. 415.)

The court erred in admitting testimony on matters not put in issue by the pleadings; such evidence was incompetent for any purpose, not being material to any issue, even though not objected to. (1 Spelling, New Trial & App. Prac., secs. 238, 410.)

"A finding must be supported by the legal effect of relevant and material evidence in order to withstand a motion for a new trial." (1 Spelling, New Trial & App. Prac., sec. 238, p. 409.)

As to the right of the plaintiff to recover this trust fund from the defendants jointly and severally as claimed, see Duckett v. National Mechanics' Bank, 86 Md. 400, 63 Am. St. 513, 38 A. 983, 39 L. R. A. 84, note cited in 52 L. R. A. 790, and Anderson v. Pacific Bank, 112 Cal. 598, 53 Am. St. 228, 44 P. 1063, 32 L. R. A. 489.

C. T. McDonald and Jas. De Haven, for Respondents.

Where the evidence is conflicting as to the facts, and there is substantial evidence supporting the findings of fact by the trial court, the findings and decree entered in accordance therewith will not be reversed. (1 Spelling, New Trial, sec. 238, p. 408; Brinton v. Steele, 23 Idaho 615, 131 P. 662.)

The case of Duckett v. National Mechanics' Bank, 86 Md. 400, 63 Am. St. 513, 38 A. 983, 39 L. R. A. 84, being the case most strongly relied upon by appellant, instead of sustaining appellant's contention, fully sustains the position taken by respondents.

Neither the respondent bank nor F. L. Leonard, cashier, had notice that the check given by appellant to Hockersmith and by him deposited in the respondent bank was a trust fund. (First National Bank v. Valley State Bank, 60 Kan. 621, 57 P. 510; Munnerlyn v. Augusta Bank, 88 Ga. 333, 30 Am. St. 159, 14 S.E. 554.)

STEWART, J. Sullivan, J., concurs. Ailshie, C. J., sat at the hearing, but took no part in the decision of this case.

OPINION [136 P. 995]

[25 Idaho 142] STEWART, J.

This is an action brought by appellant against the respondents to recover the sum of $ 625, alleged to have been placed under the control of J. W. Hockersmith as trustee of appellant, and it is claimed that Hockersmith [25 Idaho 143] and F. L. Leonard, cashier of respondent bank and trust company, combined and connived and conspired to appropriate and apply said sum to their own use.

The allegations of the complaint were denied by the defendants, except the issuing of the check of the plaintiff to Hockersmith. The case was tried and judgment was rendered for the respondents and the action was dismissed. A motion for a new trial was made and denied, and this appeal is from the judgment and also from the order denying the motion for a new trial.

A motion has been made in this court to dismiss the appeal from the order overruling the motion for a new trial, for the reason that no notice of motion for a new trial and no motion for a new trial were ever filed, and there was no certificate of the presiding judge in said cause showing what papers or records were used upon the hearing or notice of intention to move for a new trial or upon the motion for a new trial. This motion is sustained as to the appeal from the order overruling the motion for a new trial, and the case will be considered on the record as an appeal from the judgment.

It is necessary in this opinion to set forth the substance of the pleadings, for the reason that the appellant relies upon this appeal that the court erred in overruling the demurrer to the answers, to which exception was taken.

The complaint alleges that the plaintiff is a widow, and that at the death of her husband on the 3d day of August, 1909, the plaintiff's husband was the owner of a dwelling-house and lot in Grangeville, upon which a real estate mortgage existed unpaid for the sum of $ 600 and interest; that J. W. Hockersmith is the administrator of the said estate of Robert J. Dearing, deceased, and has been so since his appointment; that the appellant reposed faith, trust and confidence in him and his honesty and integrity, and placed in his hands on or about the 3d of November, 1909, the sum of $ 625, her own individual and separate property, to be applied by Hockersmith in payment of said above-mentioned mortgage, and that Hockersmith accepted and promised and agreed with the [25 Idaho 144] plaintiff to apply and pay the same on said mortgage and for no other purpose; that contrary to said agreement and promise, and in violation of the trust and confidence reposed in Hockersmith and contrary to his agreement and promise, Hockersmith and the Grangeville Savings & Trust Company (this defendant will hereafter be designated as trust company), by and through the said defendant F. L. Leonard, the cashier of said trust company, acting in concert and without the knowledge of the plaintiff, did on or about the 3d of November, 1909, combine, connive and conspire for the purpose of cheating and defrauding the plaintiff out of the said $ 625 by the following false and fraudulent statements made to her by the said Leonard, with the knowledge of the defendant Hockersmith, to wit, by fraudulently inducing her, the plaintiff, to sign her name to a check on the said trust company, where she had deposited said money, in the name of Hockersmith, and made payable to him, and in return for so making said check...