Gonzalez & Company v. Thomas, Civil 3297

• Citation: 25 P.2d 552,42 Ariz. 308
• Decision Date: 10 October 1933
• Docket Number: Civil 3297
• Parties: GONZALEZ & COMPANY, BROKERS, INC., a Corporation, and F. J. B. GONZALEZ, Appellants v. LLOYD THOMAS, as Superintendent of Banks of the State of Arizona and Ex-officio Receiver of SONORA BANK AND TRUST COMPANY, an Insolvent Banking Corporation, Appellee
• Court: Supreme Court of Arizona

25 P.2d 552

42 Ariz. 308

GONZALEZ & COMPANY, BROKERS, INC., a Corporation, and F. J. B. GONZALEZ, Appellants v. LLOYD THOMAS, as Superintendent of Banks of the State of Arizona and Ex-officio Receiver of SONORA BANK AND TRUST COMPANY, an Insolvent Banking Corporation, Appellee

Civil No. 3297

Supreme Court of Arizona

October 10, 1933

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Judgment affirmed.

Mr. G A. Little, for Appellants.

Mr James V. Robins, for Appellee.

OPINION

ROSS, C. J.

When S.W. Ellery, superintendent of banks, the predecessor of the plaintiff Lloyd Thomas, took over the Sonora Bank and Trust Company, an insolvent, he found among its assets a note for $3,000, dated September 10, 1931, payable to the bank four months after date, and signed by "Gonzalez & Co. Brokers, Inc. F. J. B. Gonzalez, Mgr. (and) F. J. B Gonzalez" as makers. Thereafter, on, May 25, 1932, the superintendent of banks brought this action on the note alleging the balance due thereon, after crediting all payments, was $1,500 principal and $25.69 interest.

The defendants admit the execution and validity of the note, but state that they owe a balance of $294.08 and no more, which they allege they offered to pay plaintiff before suit was filed. Defendant Gonzalez & Company, Brokers, Inc., to which we shall hereafter refer as the corporation, also sets up in its answer a counterclaim to the note. It alleges that the Sonora Bank and Trust Company, in which it was a depositor, on May 22, 1930, charged to its account the sum of $1,029.33, being the principal and interest of an overdue note executed to the bank by P. D. C. Gonzalez as principal and F. J. B. Gonzalez as surety, without its consent, and that it should now be credited with that amount on its note.

Plaintiff, in reply to the counterclaim, admits charging said note of P. D. C. Gonzalez and F. J. B. Gonzalez to the account of the corporation, but alleges that such corporation and F. J. B. Gonzalez are one and the same in business interest and identity; that all of the stock of such corporation is owned by Gonzalez except one share belonging to each of the other directors; that he was the president, general manager and executive head of the corporation, and at all times controlled the board of directors; that the business and assets thereof were his personal and private property; and that the corporation was a mere functionary for his purposes. It is alleged that the note sued on was made, executed and delivered to the bank for $3,000 after said bank had charged the P. D. C. Gonzalez and F. J. B. Gonzalez note to the corporation's bank account, and that the said corporation thereby consented and assented to said charge.

The case was heard before the court without a jury, and at its conclusion judgment was entered for plaintiff, from which this appeal is prosecuted.

While the defendants have made sixteen assignments and submitted an equal number of propositions of law, we think, with them, that "the only question is as to whether the bank was justified in making such charge ($1,029.33) to the corporation's account." In other words, did the bank under the circumstances have a right to apply what it owed the corporation on a debt owing it by the two Gonzalez? It is settled law that a bank may charge against a depositor's account an overdue indebtedness of his to the bank, and that the consent of the debtor is not necessary to make it legal. Hammons v. Grant, 26 Ariz. 344, 225 P. 485.

Plaintiff insists, as we understand him, (1) that the corporation and F. J. B. Gonzalez are in effect one and the same, the corporation being a mere vehicle through which Gonzalez transacted his private and personal business, and that the deposit was properly debited with the Gonzalez note; and (2) that, if that is not so, the credit was made with the consent of the corporation through its president, general manager and executive officer, and cannot therefore be used as a counterclaim against the note sued on.

Defendants contend that the evidence does not show (1) that the deposit in bank belonged to F. J. B. Gonzalez, or that its nominal depositor, the corporation, was a mere functionary of his; and (2) that the corporation consented to the charge of the Gonzalez note against its account.

The court's findings upon these controverted questions were as follows:

"That said bank and said F. J. B. Gonzalez considered the deposit account of said Gonzalez & Company, Brokers, Inc., as being the individual account of said F. J. B. Gonzalez. That said F. J. B. Gonzalez was the owner and holder of all the subscribed, issued and outstanding capital stock of said Gonzalez and Company, Brokers, Inc., excepting only a sufficient number of shares necessary to qualify other persons to act as directors, not exceeding one share to each of said persons, and that at said time said Gonzalez and Company, Brokers, Inc. was a mere instrumentality or business conduit of the defendant F. J. B. Gonzalez through which his personal and private business was carried on and conducted.

"That upon it being advised that said bank had charged to its deposit account with said bank the sum of $1029.33 as aforesaid, said defendant Gonzalez and Company, Brokers, Inc. credited said sum to said Sonora Bank and Trust Company upon...