Fishburne v. Merchants' Bank of Port Townsend

• Citation: 85 P. 38,42 Wash. 473
• Court: United States State Supreme Court of Washington
• Decision Date: 29 March 1906
• Parties: FISHBURNE v. MERCHANTS' BANK OF PORT TOWNSEND.

85 P. 38

42 Wash. 473

FISHBURNE v. MERCHANTS' BANK OF PORT TOWNSEND.

Supreme Court of Washington

March 29, 1906

Appeal from Superior Court, Jefferson County; George C. Hatch Judge.

Action by George P. Fishburne, substituted for Eric Edw. Rosling administrator with the will annexed of William H. Fiske deceased, against the Merchants' Bank of Port Townsend. From a judgment of dismissal, plaintiff appeals. Affirmed.

Eric Edw. Rosling and George P. Fishburne, for appellant.

A. W Buddress, for respondent.

HADLEY J.

The plaintiff and appellant, administrator in this cause, having died pending the appeal, and it having been made to appear to this court that George P. Fish burne has been appointed to succeed the deceased administrator, it is now, on stipulation of the parties, ordered that said George P. Fishburne, as such administrator, shall be, and he is hereby, substituted as party plaintiff and appellant herein. The action was brought to recover the balance of a deposit in the defendant bank alleged to have been due and owing to William H. Fiske, now deceased, at the time of his death. The complaint alleges that said Fiske died September 26, 1901, and facts concerning the appointment and qualification of the original plaintiff as administrator are also alleged. It is also averred that at the time of his death the said Fiske had on deposit with the defendant, a banking corporation, the sum of $312.55, which amount was placed to his credit upon the defendant's books, and that the defendant refuses to pay said sum or any part thereof, although demand has been made therefor. Judgment is demanded for the full amount with interest. The defendant answered the complaint, and interposed certain affirmative defenses, among which were averments charging the deceased with having fraudulently sold to the defendant 53 certain negotiable instruments for the payment of money; that the deceased was in possession of said instruments before their maturity, and that they were payable to the order of F. Chevalier & Co., whose indorsement was unlawfully forged upon the instruments by the deceased, for the purpose of deceiving and defrauding the defendant; that thereby the defendant was induced to purchase said negotiable instruments for the aggregate sum of $13,094.26, and gave the deceased credit upon its books for said sum, but that by reason of the premises the credit so given was false and untrue, and that there is not now, and never has been, any money due or owing to the deceased from the defendant; that before the deceased departed this life he drew out of defendant's bank, by reason of said fraudulent acts and credit, the sum of $12,781.71, leaving a balance of $312.55 of said false and fraudulent credit; that plaintiff's complaint is wholly founded upon, and is brought to recover upon, said false credit, and not otherwise; that immediately after the deceased departed this life, and not before that time, the defendant discovered said false and fraudulent acts and representations; that the true owner of said instruments reclaimed and recovered them from the defendant, the defendant being obliged to surrender them all, and that it thereby lost the use and value thereof. The plaintiff replied with denials, and affirmatively alleged, among other things, that on or about September 18, 1901, the said deceased borrowed from the defendant, upon his personal note of that date and maturing November 17, 1901, the sum of $333.31, which amount was by defendant placed to the credit of the deceased upon its books, that said note at the time of the death of Fiske had not matured, and that thereafter, about March 31, 1902, the defendant wrongfully, and without the knowledge or authority of plaintiff, applied upon said note the balance due the deceased at the time of his death, to wit, $312.55. With the pleadings standing thus, but containing, also, other averments which we have not thought it is material to mention, the defendant moved for judgment upon the pleadings in its favor. The motion was granted, and judgment was entered dismissing the action and awarding costs to the defendant. The plaintiff has appealed.

It is assigned that the court erred in entering judgment for respondent upon the pleadings. It is argued that the denials in the pleadings of the respective parties made issues which should have been tried. The motion of respondent, however, had the effect of admitting all the allegations of the complaint and of the affirmative averments of the reply considered together. With such admission, there was no necessity for any proof upon the part of appellant, since, if a challenge to the sufficiency of his allegations developed that he was not entitled to recover, a challenge to the evidence in support thereof would have led to the same result. The record does not disclose any application on the part of appellant for leave to amend his pleadings. The Supreme Court of California, in Kelley v. Kriess, 9 Pac. 129, pertinently said: 'If plaintiff has a good cause of action which by accident or mistake he has failed to set out in his complaint, the court, on motion for judgment on the pleadings, should, on his application so to do, permit him to amend. But failing to make such application, there can be no good reason for proceeding to trial in a cause where, admitting all the facts charged as true, the plaintiff is still not entitled to a judgment.' No application to amend being disclosed, it must be presumed here that the appellant stood on his pleadings as they were originally filed. Carstens v. Milo (Wash.) 82 P. 410; Noerdlinger v. Huff, 31 Wash. 360, 72 P. 73.

Since all the allegations of the complaint and all those of the affirmative reply are admitted to be true, the question is does appellant show thereby that he is entitled to recover? He sues to recover an alleged balance of $312.55 deposit in ...