Dempster v. Ackley

• Decision Date: 07 December 1929
• Docket Number: 28,914
• Parties: E. J. DEMPSTER, as Receiver of the State Bank of Superior, Nebraska, Appellant, v. G. W. ACKLEY, Appellee
• Court: Kansas Supreme Court

282 P. 595

129 Kan. 256

E. J. DEMPSTER, as Receiver of the State Bank of Superior, Nebraska, Appellant, v. G. W. ACKLEY, Appellee

No. 28,914

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Opening Statement--Purpose and Effect. In an action by the receiver of an insolvent bank to recover a sum of money alleged to have been paid out of the bank's funds for the use and benefit of defendant, the pleadings and opening statements of counsel considered and held that the trial court committed no error in refusing to render judgment for plaintiff thereon.

2. APPEAL AND ERROR -- Review of Evidence -- Sufficiency of Record. Rule of plaintiff's motion for an instructed verdict considered and not sustained by the code presents nothing for review.

3. TRIAL--Directed Verdict--When Proper. Error assigned in the overruling of plaintiff's motion for an instructed verdict considered and not sustained.

4. BANKS--Deposit for Benefit of Third Person--Liability for Misappropriation by President. Where a third party paid money to the president of a bank for the use and benefit of defendant, which purpose was known by the president, and the president placed that money in the bank to the credit of the private checking account of himself and the bank cashier, which fact was unknown by the third party or by the defendant, and later the bank paid the amount in accordance with the purpose for which it was delivered to its president, no action by the receiver will lie against defendant for the recoupment of the loss sustained by the bank on the theory that the receipt of the money was not a bank transaction but an individual transaction with its president and that the president had wrongfully used the bank's funds to discharge his personal obligation or otherwise wrongfully for the benefit of defendant.

R. W. Turner, D. F. Stanley, both of Mankato, and Thomas J. Keenan, of Geneva, Neb., for the appellant.

George E. Teeple and A. Teeple, both of Mankato, for the appellee.

OPINION

DAWSON, J.

The plaintiff, as receiver of the insolvent State Bank of Superior, Neb., brought this action against G. W. Ackley, a former resident of Jewell county, but more recently a resident of California, to recover the sum of $ 3,632.55 which it was alleged the former president of the bank, Joseph E. Weir, had paid out of the bank's funds to satisfy a mortgage on Ackley's farm held by the First Trust Company of Lincoln, Neb.

The antecedent facts leading up to plaintiff's cause of action were these: Some years ago Ackley's son, Emor L. Ackley, desired to buy an eighty-acre farm covered by a $ 5,000 mortgage. To aid him in that project defendant Ackley mortgaged his own farm to the Lincoln Trust Company for $ 3,600 and loaned that sum to his son, taking a second mortgage on the eighty acres to secure its repayment to him. The son sold the eighty-acre farm to Joseph E. Weir, subject to the two mortgages, and Weir in turn sold it to Edward Wilde, who assumed and agreed to pay the two mortgages. Wilde was apparently a man of some means, and he determined to pay off the second mortgage held by Ackley, senior, defendant herein. At the same time Weir, the banker, negotiated a personal loan of $ 1,000 to himself from Wilde, and in accordance with both purposes Wilde gave Weir a check for $ 5,042.92, which included the amount of the $ 3,600 second mortgage and some accrued interest, and the $ 1,000 to Weir personally. Some time elapsed before Ackley, senior, who was then in California, was advised that Wilde had paid over the money to satisfy the $ 3,600 second mortgage on the eighty acres. When Ackley learned of it he released that mortgage. It seems that the bank officials understood that defendant Ackley wanted the money sent to the Lincoln Trust Company to pay off the mortgage on his own farm, but the bank was slow about attending to that detail. Ackley repeatedly wrote to the bank about this delay, and eventually a cashier's check for $ 3,632.55, executed by Joseph E. Weir as president of the State Bank of Superior, was forwarded to the Lincoln Trust Company to satisfy the mortgage on defendant Ackley's own farm.

Apparently no methodical record was made in the bank of the receipt of the $ 3,600 and interest. The books of the bank did show a deposit of $ 5,042.92 to the credit of the private checking account of the president and cashier of the bank, "Weir and Aldrich," and when the cashier's draft for $ 3,632.55 was forwarded to the Lincoln Trust Company a debit slip was carried among the cash items of the bank, which read:

DEBIT: Weir & Aldrich 1-15 1927

G. W. Ackley, $ 3,632.55

First Trust Co.

ENN.

The theory underlying plaintiff's cause of action was that the bank had nothing to do with the transaction, that the payment of the money by Wilde to extinguish the second mortgage on the eighty acres he had purchased was not made to the bank, but to Weir, its president, personally; and that Weir as president had wrongfully appropriated $ 3,632.55 of the bank's funds to pay off a debt of his own to the defendant Ackley; and in consequence that defendant Ackley owed the bank for its money thus paid out in his behalf.

The principal issue raised by the pleadings and around which the evidence of the litigants centered was whether the receipt of the money from Wilde and the subsequent satisfaction of the mortgage held by the trust company on defendant Ackley's farm was a bank transaction or a personal one with Weir, the bank's president. The jury resolved that question in favor of defendant, and judgment was entered accordingly.

Plaintiff appeals, assigning certain errors, the first of which is based on the overruling of appellant's motion for judgment on the pleadings and opening statement of the appellee. No error is apparent in these rulings. Defendant's answer conceded nothing to his prejudice, and the opening statement of his counsel merely sketched the main outlines of his defense. In Smith v. Insurance Co., 108 Kan. 572, 196 P. 612, it was said:

"As opening statements of counsel are generally no more than outlines of anticipated proof and not intended as a complete recital of the facts to be produced on contested issues, a judgment should not be entered on such statements unless they are understandingly and completely made and the facts so stated absolutely preclude a recovery or a proposed defense." (Syl. P 1.)

The second error assigned relates to the exclusion of testimony, but what its nature might be is not disclosed; consequently it presents nothing for review. (Nutter v. Black, 126 Kan. 331, 267 P. 961.)

Error is also assigned on the overruling of appellant's motion for a directed verdict. As we have seen, however, there was an issue of fact to be determined. While it is contended that there were no disputed facts, and in a sense that is true, there was a conclusion of fact to be deduced from the conceded primary facts. There is a cross appeal based on the point that appellee should have had judgment on the pleadings, statements of counsel and undisputed facts. However, it can hardly be held that the trial court erred in not disposing of the case on a motion for an instructed verdict, at least so far as concerns the appellant.

Another contention of appellant is that the trial court erred in its instruction to the jury. Here, if anywhere, is the crucial point in this appeal. In substance the court instructed the jury that if Wilde's payment of the money due Ackley on the second mortgage was a transaction with the bank and not with Weir, its president, personally, then Ackley would not be liable. Certainly that was a correct...