First International Bank of South Bend v. Olsen

• Decision Date: 05 December 1921
• Docket Number: 16622.
• Citation: First International Bank of South Bend v. Olsen, 202 P. 268, 117 Wash. 663 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: FIRST INTERNATIONAL BANK OF SOUTH BEND et al. v. OLSEN.

202 P. 268

117 Wash. 663

FIRST INTERNATIONAL BANK OF SOUTH BEND et al. v. OLSEN.

No. 16622.

Supreme Court of Washington

December 5, 1921

Department 2.

Appeal from Superior Court, Pacific County; H. W. B. Herren, Judge.

Action by the First International Bank of South Bend and Claude P Hay, as Bank Commissioner, against Eli Rockey and wife and Thomas Olsen, in which defendant Olsen filed cross-complaint From judgment against plaintiffs upon their cause of action and for defendant Olsen upon his cross-complaint, plaintiffs appeal. Affirmed.

D. E Twitchell, of Seattle, for appellants.

Fred M Bend, of South Bend, for respondent.

HOVEY J.

Appellant bank commissioner sued the respondent and his comaker on a promissory note given to the bank which is now being liquidated by the appellant. The wives of the makers of the note were also made parties.

The respondent among other defenses pleaded payment and also pleaded by way of cross-complaint that there was due him a dividend upon a deposit which he had in the bank at the time it failed. The cause was tried before a jury. A verdict was returned against the appellant upon his cause of action and in favor of the respondent upon his cross-complaint. Appellant asked for a directed verdict, and now assigns error for the reason that the same was not ordered.

There was substantial evidence, if believed by the jury, to establish the case of respondent. Appellant cites Fishburne v. Robinson, 49 Wash. 271, 95 P. 80, but in that case there was no testimony to justify the submission of the defense to the jury. Appellant also cites 30 Cyc. pp 1290-1292, to the effect that the burden of proof upon the plea of payment is upon the defendant. This is the law, but...