Ewell v. Best

• Decision Date: 13 November 1917
• Citation: Ewell v. Best, 177 Ky. 673, 198 S.W. 4 (Ky. Ct. App. 1917)
• Parties: EWELL v. BEST ET AL.
• Court: Kentucky Court of Appeals

198 S.W. 4

177 Ky. 673

EWELL v. BEST ET AL.

Court of Appeals of Kentucky.

November 13, 1917

Appeal from Circuit Court, Laurel County.

Action by R. A. Ewell against McCalla Fitzgerald and John A. Best substituted for Fred W. Weitzel as receiver of the First National Bank of London, Ky. From judgment for defendants plaintiff appeals. Affirmed.

H. C Clay, of London, for appellant.

Hazlewood & Johnson, of London, for appellees.

CARROLL J.

The appellant, Ewell, as plaintiff below, brought suit in equity against McCalla Fitzgerald, and Fred W. Weitzel, as receiver of the First National Bank of London, charging, in substance:

That on April 23, 1914, he loaned to Fitzgerald $1,000, "for the purpose and with the express agreement and understanding between the plaintiff and defendant Fitzgerald that all of said sum should be delivered and paid to the said Fred W Weitzel, as receiver of the First National Bank of London, Ky. and by the said Weitzel applied as a payment on the indebtedness of the said Fitzgerald to the First National Bank of London, Ky. by reason of certain overdrafts of said Fitzgerald, amounting to the sum of $______.

"The plaintiff further says that in pursuance of the aforesaid agreement and understanding between plaintiff and defendant Fitzgerald, the said Fitzgerald did on or about the 23d day of April, 1914, pay and deliver to the said Weitzel the sum of $1,000 with the express agreement and understanding between said Fitzgerald and Weitzel, and under the express direction of the said defendant Fitzgerald, that all of said sum of money should be then and there applied by said Weitzel, as receiver aforesaid, as a payment and credit on the indebtedness of said Fitzgerald to said bank by reason of certain overdrafts then existing against said Fitzgerald, and said Weitzel received said money and promised the defendant Fitzgerald that he would so apply said sum of money. But the plaintiff says that the said Weitzel, instead of applying said money to the payment of said overdrafts, as he promised and agreed to do, failed so to do, and on the contrary without any authority whatever from said Fitzgerald or from the plaintiff, and without the knowledge or consent of plaintiff and said Fitzgerald, and against their will, the said Weitzel, receiver as aforesaid, wrongfully and in violation of said agreement, misapplied said sum of money by crediting that sum on an old note of many...