First Nat. Bank of Central City v. Hummel

• Decision Date: 28 February 1890
• Citation: 14 Colo. 259,23 P. 986
• Parties: FIRST NAT. BANK OF CENTRAL CITY v. HUMMEL et al.
• Court: Colorado Supreme Court

23 P. 986

14 Colo. 259

FIRST NAT. BANK OF CENTRAL CITY v. HUMMEL et al.

Supreme Court of Colorado

February 28, 1890

Commissioners' decision. Appeal from district court, Arapahoe county.

Hugh Butler and A. B. McKinley for plaintiff in error.

A H. De France, for defendant in error.

PATTISON C.

In this case, plaintiff in error seeks to review a judgment sustaining a demurrer to the complaint. It is alleged, in substance, that June 28, 1884, Risdon borrowed from one Heatly, then a resident of Golden, the sum of $1,200, for which he gave his note secured by a trust-deed; that the money was not paid by Heatly to Risdon at the time, but an arrangement for the payment thereof was entered into between Heatly and Risdon and one Everett; that, by the terms of the arrangement, it was provided that Risdon should draw his draft at sight on Everett, at Golden, for said sum of $1,200; that, upon the receipt of the draft, Heatly should provide the money to pay it, and that thereupon Everett should transmit the sum received from Heatly to Risdon, or make such other disposition of it as Risdon should direct that on July 15, 1884, pursuant to the arrangement, Risdon made his draft upon Everett, 'in and by which draft he directed the said F. E. Everett to pay said sum of $1,200 to this plaintiff, and said Risdon then and there delivered said draft to this plaintiff, whereby the plaintiff became entitled to receive of and from the said Everett said sum of $1,200 upon presentation and delivery of said draft;' that on the 16th day of July, 1884, the plaintiff sent the draft by mail to Everett, accompanied by a letter instructing him to remit the said sum of $1,200 to the German National Bank, at Denver, Colo., for the benefit of the plaintiff that on July 17, 1884, the draft and the letter were received at the banking office of Everett, in Golden, and at or about the same time the said Heatly paid into said banking office the sum of $1,200, being the money called for and mentioned in the draft and the letter of plaintiff, and the deaft was then stamped and canceled as paid; that the said sum of $1,200 was received by said Everett, or some one in his employ for him, as the money mentioned in the draft and letter, and was paid by Heatly, in pursuance of the arrangement mentioned; and that, under said arrangement, it was the duty and obligation of Everett to at once remit the said sum to the German National Bank of Denver for the credit of the plaintiff. It is then alleged that, within a short time after the money was received, Everett suddenly died, and the bank was immediately closed, and no further business transacted therein, and that when Everett died, and when said bank was closed, the said sum of $1,200 remained in the bank, and had not been remitted to the German National Bank at Denver, as directed; that the bank was not opened thereafter. It is further alleged that on November 12, 1884, the defendant Hummel took possession of the said banking office and its contents, and kept possession of the same; that, among other effects therein, he took possession, and has since had possession, of said sum of $1,200; that thereafter, and on November 20, 1884, plaintiff demanded of Hummel the payment and delivery of said sum of $1,200, but that he refused to pay the same. It is then alleged, in effect, that, by the terms of the contract between plaintiff and Risdon, the plaintiff was to collect the draft, and, in case it was paid, and the amount thereof deposited in the German National Bank of Denver to the credit of the plaintiff, then plaintiff was to give Risdon credit for the sum of $1,200; that on August 12, 1884, plaintiff informed Risdon that the draft had been paid by Heatly, but that its proceeds had not been remitted to the German National Bank of Denver, as requested; that the money was in the possession of the person in charge of Everett's property; and plaintiff then notified and requested Risdon to take early and proper steps for the recovery of the same; that Risdon refused to take such steps, and notified plaintiff that he should look to plaintiff only for said sum of money; that plaintiff requested Risdon to join as co-plaintiff in the suit; that he refused, and for that reason he was 'that said Hummel deliver and pay over to the plaintiff said sum of $1,200, together over to the plaintiff said sum of $1,200, to gether with interest thereon at the rate of 10 per cent. per annum from said 20th day of November, 1884, and costs.' There is also an additional prayer, in the following language: 'And demands judgment against John S. Risdon that he pay plaintiff a reasonable sum of money, sufficient to reimburse plaintiff for all costs and expenses paid and incurred in the prosecution and maintenance of this suit, and for the recovery of said money; that he be adjudged the owner of said sum of $1,200, less the expense of collection so found as aforesaid; and that plaintiff be released from any and all liability to said John S. Risdon by reason of making presentation and payment of said draft as aforesaid, and of all the other facts hereinbefore set forth.'

To this complaint the defendant in error demurred upon the grounds-- First, that the complaint did not state facts sufficient to constitute a cause of action; second, that there is misjoinder of parties defendant, etc.; third, that several causes of action have been improperly united, etc.; fourth, that the causes of action so improperly united are not separately stated. The demurrer was sustained. Plaintiff in error 'elected to abide by said complaint,' and thereupon the judgment was rendered, now sought to be reviewed. The causes of demurrer will be considered in the order in which they have been stated.

First then, are the facts alleged sufficient to constitute a cause of action against the defendant in error? In other words, upon the facts stated, is plaintiff entitled to the judgment demanded, or to any judgment or relief in the premises whatever? In the discussion of this question, it will be necessary, first, to define the relation of the several parties to the fund in question. That relation must be determined from the facts as alleged in the complaint. The facts, then, are that on June 28, 1884, Heatly agreed to loan to Risdon $1,200. On that day, Risdon made his note, and delivered the same to Heatly. The money to be loaned was not paid over by Heatly to Risdon. It was arranged that on July 15th following, Risdon should be paid by Heatly. To accomplish this, it was agreed between Heatly, Everett, and Risdon that, on the day named, Risdon should draw a draft on Everett, which Everett should pay if Heatly provided the funds for payment. Pursuant to the arrangement, Risdon drew his draft upon Everett, and delivered it to the plaintiff. It is a fair inference from the allegations of the complaint that the draft was payable to the order of the plaintiff. The plaintiff sent the draft to Everett with instructions that, when Heatly paid the money to him, he (Everett) should transmit the money received from Heatly to the German National Bank for the credit of the plaintiff. Upon this state of facts, the relation between the several parties is clear and well defined. Risdon made the plaintiff in error his agent to obtain the fund in question. The plaintiff made Everett its agent to receive the fund from Heatly. When he received the fund, it was his duty to transmit the identical money received to the German National Bank for the credit of the plaintiff. When the money was paid by Heatly to Everett, therefore, the title to the fund was vested in the plaintiff. The beneficial ownership was vested in Risdon; Everett had no title or interest in the money, or any part of it. His failure, therefore, to transmit the money received from Heatly to the German National Bank, was a violation of the duty he owed the plaintiff and Risdon. When he received the money, it became the money of the plaintiff and Risdon. When he died, the fund was their property, and was their property when received by defendant in error. The question presented upon these facts is whether this sum of $1,200 can be recovered. The action is brought against the defendant in error individually. It will be assumed, however, that the fund was taken by him as the personal representative of the decedent. The case will first be considered without reference to the statute of this state relating to the administration of estates of deceased persons. It was conceded by counsel for defendant in error, upon the oral argument, that, if this specific sum of $1,200 could be identified in any way, then the action could be maintained. But it was insisted, if the fund when received was mingled with other funds belonging to decedent so that its identity was lost, then, and in that event, no action could be maintained to recover it. This proposition was predicated upon the principle that money, as such, cannot be recovered, because, in the language of the books, it has no 'earmark' by which it can be distinguished. If this principle can be successfully invoked in this case, then a fund to which decedent had no title, and in which he had no beneficial interest whatever, became a part of the body of his estate to be distributed among the general creditors. If the estate of Everett is insolvent, such a result would not only be inequitable and unjust, but a reproach to the law. It is undoubtedly true that the principle contended for was at one time so well settled as to be elementary. It is clearly stated in Schouler, Ex'rs, § 205. Attention is only called to two clauses of this section: 'Only those things in which the decedent had a beneficial interest at his death are assets, and not those which he holds in trust, or as the bailee or...