Hillsdale State Bank v. Christensen

• Citation: 229 P. 105,32 Wyo. 68
• Decision Date: 07 October 1924
• Docket Number: 1121
• Parties: HILLSDALE STATE BANK v. JAMES A. CHRISTENSEN [*]
• Court: United States State Supreme Court of Wyoming

229 P. 105

32 Wyo. 68

HILLSDALE STATE BANK v. JAMES A. CHRISTENSEN ^[*]

No. 1121

Supreme Court of Wyoming

October 7, 1924

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by the Hillsdale State Bank against James C. Christensen and others. From a judgment for plaintiff, defendants W. W. Hale and wife appeal.

Affirmed and reversed.

Kinkead and Henderson for appellants.

The question of attorney's fees should have been submitted to the jury, 6 C. J. 764; Cotesworth P. Head v Hargrave, 105 U.S. 1028, 26 L.Ed. 51; Childs v Littlefield, 91 N.E. 1017; the credibility of witnesses is for the jury, Boswell v. Bank, 16 Wyo. 161; C. B. & Q. Ry. Co. v. Pollock, 16 Wyo. 338; White v. Collins, 95 N.W. 765; Siebe v. Machine Works, 77 N.E. 300; Brown v. Reed, 41 Ga. 604; Sternaman v. Co. (N. Y.) 73 N.E. 113; Dinan v Council, 60 A. 10. The court erred in directing a verdict when there was evidence tending to prove plaintiff's case on an issue of fact, Mau v. Stoner, 10 Wyo. 125; Nelson v. Johnson, 23 Wyo. 319; Chinn v. Co., 75 S.W. 375; Allen v. Am. Co. (Neb.) 106 N.W. 469; A. T. & S. F. Ry. Co. v. Lamoreaux (Kan.) 49 P. 152; Greenleaf v. Co., 33 Ia. 608; Louisville Co. v. Hall, 94 S.W. 26; Todd v. Co., 51 A. 332; Carter v. Fulgham, 32 So. 684. The question of fraud was one for the jury, Kerr v. Shurtleff, 105 N.E. 870; Gurney v. Tenney, 84 N.E. 428; Adam v. Steinbrecher, 133 N.W. 474; Fry v. Co., 69 A. 56; Metal Co. v. R. R. Co., 59 S.E. 50; Stringfellow v. Brazelton, 142 S.W. 937; Elliott Evi. Vol. 4 p. 202; Bank v. Cook, 183 N.W. 137; Bank v. Moomaw, 184 N.W. 51. The bank was bound by the acts of its officers having retained the benefit thereof, Lee v. Bank, 144 N.W. 630; Williams v. Hasshagen, 137 P. 9; Porter v. Bank, 120 N.W. 633; Citizens Bank v. Thornton, 174 F. 752; Bank v. Bank, 187 N.W. 623; Fletcher on Corps. Vol. 3, pp. 2284, 3100, 3108; 10 Cyc. 1064; 7 C. J. 559. The burden of fraud was upon plaintiff and it should have produced its books, Stirling v. Wagner, 4 Wyo. 5-42.

Ray E. Lee for respondent.

Assignments one to fifteen inclusive were insufficient to present any question for review, Boburg v. Prahl, 3 Wyo. 325; C. B. & Q. Ry. Co. v. Morrison, 16 Wyo. 308; Walbol v. Steinhoff, 25 Wyo. 227; Holdsworth v. Blyth & Fargo Co., 23 Wyo. 52; they were waived by a failure to discuss them in the brief, C. B. & Q. Ry. Co. v. Lampman, 18 Wyo. 106; the uncontradicted testimony as to the value of services rendered by plaintiff's attorney at $ 200.00 did not warrant the fixing of value of such service in another amount, especially where the amount fixed was reasonable, Peters v. Wright, 6 Ind. 183; Lussee v. Hays, 22 La. Ann. 307; 2nd Natl. Bank v. Donald, 56 Minn. 491; St. Louis Co. v. Humbert, 101 Ark. 532; Hayward v. Rogers, 62 Cal. 348; Western Ry. Co. v. Beason, 112 Ga. 553; Sleeper v. Des Moines, 93 N.W. 585; Edwards v. Co., 64 Ore. 208; discretion of the jury in the matter of credibility does not warrant the disregarding of plaintiff's testimony, Johnson v. Bank, 134 Ia. 731; Mark v. Storage Co., 31 So. 671; Harrigan v. Gilchrist, 121 Wis. 383; the bank was not charged by any act of Nash, who was acting for himself, Rock Springs Bank v. Luman, 6 Wyo. 123; Grow v. Cockrill, 36 L. R. A. 89, it was not alleged that the representations were made to induce defendants to act upon them; such allegations were necessary to state a cause of action, 12 R. C. L. 323; Bank v. Swan, 3 Wyo. 356; Christensen acted for himself and Hale and wife both, 30 Cyc. 487, 20 R. C. L. 882, C. S. 4178, 4180.

Kinkead & Henderson in reply.

The Wyoming cases cited in respondent's brief relate to proceedings in error. An assignment of error of law occurring at the trial and excepted to is not indefinite, Walbol v. Steinhoff, 25 Wyo. 227; the authorities cited by respondent are not in point upon the facts, in fact some of them support the contention of appellant. Most of the cases cited dwell upon the question of evidence disregarded by the jury.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the Hillsdale State Bank as plaintiff against James C. Christensen, W. W. Hale and Ella L. Hale as defendants, on a promissory note of $ 1230.25, made by defendants to said bank on January 2, 1919. Christensen made default but W. W. Hale and Ella L. Hale answered, alleging fraud as hereinafter mentioned to their damage in the sum of $ 7000. The case was tried to a jury. At the close of the testimony the court directed a verdict for plaintiff and judgment was entered thereon. W. W. Hale and his wife Ella L. Hale appeal and they will hereafter be referred to as appellants.

1. The main question in the case is as to whether or not there was sufficient testimony in the case to submit the issue of fraud to the jury. Appellants pleaded that about June 1st, 1918, they and said Christensen were about to purchase, on their joint account, a herd of cattle to be run on the lands of appellants in the vicinity of Hillsdale, in this state; that appellants were residents of Des Moines and said Christensen a resident of the vicinity of Hillsdale; that J. C. Nash then was and now is the president of said plaintiff bank; that one F. O. Osborn then was and now is the cashier of said bank; that said J. C. Nash then owned 262 head of steers of inferior quality and that he and Christensen, to the knowledge and with the connivance and participation of said bank, conspired to defraud appellants by selling said cattle to said Christensen and appellants for a price much in excess of their value, giving appellants to understand that said cattle belonged to some one else, when in fact they were owned by said Nash; that the purchase price of said cattle was $ 20,336.32 for which appellants and Christensen executed a promissory note; that in December, 1918, plaintiff bank took possession of said cattle and sold them for $ 1771.75 less than the purchase price; that after applying $ 541.54 to the credit of appellants and Christensen in said bank, there was left a balance due of $ 1230.25, for which appellants and Christensen executed the note in suit, on demand of the bank; that appellants had no knowledge of said fraud at the time of the execution of either of said notes for $ 20,336.32 or $ 1230.25. The basis of the fraud herein is the claim that the interest of Nash in the cattle in question was concealed from appellants. Nash was president of plaintiff bank. He did not, however, have the management thereof, although he had a real estate office in the same building with the bank. The latter was managed by F. O. Osborn, cashier, son-in-law of Nash. The cattle in question were owned jointly by Nash and one E. M. Sandy, were located in Nebraska, bought by Christensen and shipped to Wyoming to appellant's ranch. It seems to be the theory of counsel for appellants, in the first place, that the note in suit, which is for the principal sum of $ 1230.25, is in fact but a renewal of the indebtedness arising out of the purchase price of said cattle, and that, hence, if the defense of fraud is established as against Nash, it is also established against the note in suit, although that was made to the plaintiff bank.

The cattle were bought on June 26, 1918, for $ 18,864.00. A note was executed on that date for $ 20,336.32, which included the sum of $ 584.13 for advance interest, and the sum of $ 897.89 for expenses for shipping the cattle. This amount of $ 897.89, so the testimony shows, was paid and advanced by the plaintiff bank. An attempt was made to negotiate said note in Omaha, in order to repay the bank the amount advanced by it, but the attempt failed. The latter, so far as the evidence shows, had no interest in the cattle and no interest in the note of $ 20,336.32 except the amount of $ 897.89 already mentioned. The cattle were sold in December, 1918, bringing $ 19,088.00 and $ 541.54 a total of $ 19,629.54. The amount due to Nash at that time was $ 18,864 principal plus $ 758.31 interest, a total of $ 19,622.31; or, in other words, the sale of the cattle brought more than the amount due to Nash. By reason of the amount of $ 897.89 advanced by the plaintiff bank as above mentioned and a further amount of $ 111.52 later advanced by said bank, and by reason of expenses of sale, there was still due from Christensen and Hale, after the sale of said cattle, the sum of $ 1771.75. From this was subtracted the sum of $ 541.50 which was on deposit in the plaintiff bank, leaving the sum of $ 1230.25, for which the note in suit was given. Mr. Osborn testified that this represented a loan made by the bank to Hale and Christensen, and, in effect, that it was not in any way connected with the purchase price of the cattle. There is no substantial evidence disputing this. Nash was evidently paid the full amount due him, leaving the balance to be carried by the bank, and the note in suit cannot, accordingly, be treated, as counsel for appellant would have it done, as a balance still due on the purchase price of the cattle. Hence if the bank is liable for fraud, that claim cannot be based on any personal fraud of Nash, but must be traced to the bank itself. Before, however, considering the evidence directly bearing on that issue, we shall briefly touch upon preliminary matters, namely, to what extent Christensen and Nash are involved in any fraud, and what bearing that might have upon the fraud, if any, of the plaintiff bank.

Nash and Christensen went to Nebraska to look the cattle over. Christensen knew the interest which Nash had in them and bought them and the cattle were shipped to Wyoming and placed on appellants' ranch near Hillsdale. We do not think that there is sufficient evidence in the record to connect...