Department of Banking v. Flotree
| Decision Date | 28 October 1938 |
| Docket Number | 30393 |
| Citation | 281 N.W. 857,135 Neb. 416 |
| Parties | DEPARTMENT OF BANKING, APPELLEE, v. R. T. FLOTREE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Boone county: FREDERICK L. SPEAR JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Plaintiff possessed ample powers to bring and maintain this action. Department of Banking v. Walker, 131 Neb 732, 269 N.W. 907.
2. The instrument in suit provided for an absolute, not a conditional, guaranty of the payment of the bank's creditors in definite amounts at a time certain. The words of guarantee contain and involve no such express condition as that upon which the defense in this action purports to be based.
3. The contention, under the facts in this record, that the contract in suit was not effective unless and until all creditors of this bank should sign it cannot be accepted. The evidence, direct and circumstantial, especially in view of the findings of the trial court, establishes a contrary conclusion. In addition, the unexplained delay for three years, during which the bank continued to function under the terms of this obligation without objection, protest or dissent on part of any of appellants, operated as a waiver of this defense, if such defense ever existed.
4. Evidence in the record examined, and held to sustain the findings and judgment of the district court.
Appeal from District Court, Boone County; Spear, Judge.
Action by the Department of Banking, as receiver and liquidating agent of the Farmers State Bank of Albion, Neb., against R. T. Flotree and others, on a contract guaranteeing the payment in full of creditors and depositors of the Farmers State Bank. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed.
A contract incorporated into a pleading as part of a cause of action or defense controls the allegations which it contradicts.
W. J. Donahue, Williams & Williams and Earl Hasselbalch, for appellants.
Seymour S. Sidner and Clarence G. Miles, contra.
Heard before ROSE, C. J., EBERLY, PAINE, CARTER and MESSMORE, JJ.
This is an action at law brought by the Department of Banking of the state of Nebraska, receiver and liquidating agent of the Farmers State Bank of Albion, Nebraska, a corporation, against R. T. Flotree and others, upon a contract in writing, which, for convenience, we will call a contract guaranteeing the payment in full of the creditors and depositors of the bank named. A copy of this contract was attached to and forms a part of the amended petition upon which the action was tried. To this amended petition, defendants R. T. Flotree, Milton B. Krause, Robert D. Flory, E. M. Johnson, F. R. Smith, A. N. Lamb, executor of the estate of A. W. Lamb, deceased, Elizabeth A. Morehead, executrix of the estate of S. B. Morehead, deceased, Marie Fischer, administratrix of the estate of William Fischer, deceased, Henry Becker, Elsie Zuber, administratrix of the estate of Fred Wiegman, deceased, and James T. Clipston, joined in answer. To this answer plaintiff filed reply. Defendants T. B. Bowman, M. C. Nore and Elsie Zuber, administratrix of the estate of Fred Wiegman, deceased, also, in addition to the answer already referred to, filed separate answers. To the separate answers thus filed, the plaintiff filed replies. On the issues thus formed, a jury was waived, evidence was introduced, and, at the conclusion of the trial, findings of fact and a judgment were made and entered by the district court against all defendants, excepting John Bentjen and James T. Clipston, in a total sum of $ 95,821.41. To the judgment, motions for new trial were filed by defendants, upon consideration of which the district court, on February 4, 1938, reduced the amount of the judgment to $ 70,985.21. From this final judgment, the defendants appeal.
Appellants present three propositions in this court to sustain their appeal, viz.:
In consideration of the first contention of appellants, it will be noted that the same question was presented to this court in Department of Banking v. Walker, 131 Neb. 732, 269 N.W. 907. An examination and comparison of the records discloses that in the Walker case, as well as in the instant case, copies of the contract sued upon were attached to each petition and expressly made a part thereof. While the names of the defendants, the respective dates, and amounts, recited in these several contracts, conform to the special transaction to which the contracts respectively pertain, the substantial agreements contained therein are identical and are framed in substantially identical language. In the Walker case, a general demurrer was sustained in the district court, but such ruling was reversed in this court. This decision must be considered in the light of the following principles:
"A written instrument incorporated as an exhibit and expressly made a part of a pleading, and a part of a cause of action or a defense therein stated, controls the allegations thereof which it contradicts or which are inconsistent therewith." American Surety Co. v. School District, 117 Neb. 6, 219 N.W. 583.
In other words, a contract incorporated into a pleading as part of a cause of action or defense controls the allegations which it contradicts. Carey v. Zabel, 112 Neb. 16, 198 N.W. 169; Shafer v. Wilsonville Elevator Co., 121 Neb. 280, 237 N.W. 155; Gibson v. Dawes County, 129 Neb. 706, 262 N.W. 671.
"In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant." Carson v. City of Hastings, 81 Neb. 681, 116 N.W. 673.
In the Walker case, every objection now made to the validity of the terms of the present contract was before this court, fully considered, and determined adversely to the contention of appellants. Under the principles announced in the above cases, the validity of the basic contract and agreement in such Walker case, including the competency of the plaintiff to make, carry out, and enforce the same, notwithstanding the fact that the bank had not subscribed to the instrument in suit, was challenged by the demurrer there under consideration, and properly therein determined. We find nothing presented in appellants' contentions which would require a reconsideration of the doctrines announced in the Walker case, and the same are adhered to.
"When, in any case, an exhibit so attached is the foundation of the cause of action or defense to which it relates, the validity or sufficiency thereof, as a matter of law, to constitute or establish such cause of action or defense, may be determined on demurrer to the pleading to which it is so attached." Union Sewer Pipe Co. v. Olson, 82 Minn. 187, 84 N.W. 756.
The present review is not a trial de novo. A jury having been waived, the findings and judgment of the trial judge have the force and effect of a jury's verdict. In so far as this result may be said to have been based on conflicting competent evidence, it is binding on this tribunal.
Read in the light of these principles, the record before us sustains the conclusion that those interested in this bank were of the opinion that, if this institution could be...
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