Duncan v. Anderson
| Decision Date | 23 November 1926 |
| Docket Number | 17326. |
| Citation | 250 P. 1018,120 Okla. 194,1926 OK 924 |
| Parties | DUNCAN v. ANDERSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A bank deposit may be subject to any agreement which the depositor and the bank may make with respect to it, so long as the rights of third persons are not injuriously affected. Where such agreement is in writing, all parts of the instrument will be construed together to determine whether the deposit be a special or general one.
In an action in assumpsit, as for money had and received, it is immaterial how the money may have come into the defendant's hands, and the fact that it was received from a third person will not affect his liability, if in equity and good conscience he is not entitled to hold it against the true owner.
Privity of contract is not necessary to support an action for money had and received, and the only privity required is that arising from a promise implied by law, that the defendant having money in his hands that rightfully belongs to plaintiff, will pay it over to him.
Commissioners' Opinion, Division No. 2.
Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.
Action by Velma Anderson against Clate Duncan. From a judgment for plaintiff, defendant appeals. Affirmed.
W. R Bleakmore and John Barry, both of El Reno, Seymour Foose, of Watonga, and Roy Faubion, of El Reno, for plaintiff in error.
Lydick & McPherrin and M. E. Jordan, all of Oklahoma City, for defendant in error.
Parties will be referred to as they appeared in the trial court inverse to their order here. In her suit against defendant plaintiff Anderson alleged that the Greenfield State Bank was the duly constituted agent of plaintiff for loaning $1,100 of plaintiff's money then in possession of said bank; that plaintiff drew a check and deposited same to the credit of Duncan, who thus received and used the money; that on December 1, 1923, plaintiff demanded said sum from defendant, and that defendant has wholly failed to pay same; that no express agreement otherwise was made between the bank, as agent of plaintiff, and the defendant relative to the repayment or interest; that more than a reasonable time had elapsed; and prayed judgment in assumpsit as for money had and received. Defendant answered by general denial, denying such agency under oath. Defendant further averred:
Defendant further answered that said deposit was a general one; that the relation of debtor and creditor arose between plaintiff and the bank; that Mr. Thomas, the president of the bank, died about December 21, 1923, and the state bank commissioner took over said bank as insolvent and proceeded to wind up its affairs; that about January 1, 1924, defendant first learned that the books of the bank showed that on April 14, 1923, defendant's account, as shown by the books of the bank, had been credited with said deposit, "which is the item on which plaintiff bases her action herein; that said credit was so entered without the knowledge or consent of defendant, and knowledge thereof was withheld and concealed from defendant by such officer of such bank, and said entry of credit was by said bank omitted from subsequent statements of defendant's account issued to him, and said officer of said bank had no right or authority to enter such credit and the defendant never accepted the same, nor knowingly used the same"; that, if defendant became liable or indebted to any one, it was to the bank and not to the plaintiff, and if any one owed plaintiff, it was the bank; that the bank commissioner claimed said sum of $1,100, and demanded payment thereof from defendant, and threatened to sue defendant therefor, whereupon defendant acknowledged such claim to the bank and settled and paid same. Other matters are pleaded, which are not material here. The court sustained demurrer to this answer, and, because defendant elected to stand thereon rendered judgment for plaintiff, from which defendant appeals.
1. We deem it proper to determine, first, the relation that arose between plaintiff and the bank because of defendant's contention of primary liability of the bank to plaintiff. Under the answer, the delivery of the $1,100 by the plaintiff to the bank was a special and not a general deposit. A delivery of property, securities, or even money to the bank for the purpose of having the same safely kept and the identical thing deposited returned to the depositor, is a special deposit. 7 C.J. 630. A bank deposit, without any limitations, restrictions, or qualifications, such as are usually made in the due course of business, subject to be drawn out by the depositor on demand, is a general deposit, and creates the legal relation of debtor and creditor between the bank and the depositor. Dempsey O. & G. Co. v. Citizens National Bank, 110 Okl. 39, 235 P. 1104; 7 C.J. 628. The first sentence of the agreement, standing alone, indicates that the bank borrowed the money from plaintiff. This agreement is void in so far as it relates to the payment of more than 4 per cent. interest under the law. Morrison State Bank v. Michael, 54...
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