John v. Berry

• Decision Date: 07 December 1901
• Docket Number: 12,520
• Parties: JAMES ST. JOHN et al. v. G. K. BERRY
• Court: Kansas Supreme Court

66 P. 1031

63 Kan. 775

JAMES ST. JOHN et al. v. G. K. BERRY

No. 12,520

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Reno district court; M. P. SIMPSON, judge.

Reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

FRAUD -- Petition and Proof -- Fatal Variance. An allegation in a petition that certain representations, which defendant is charged with having made, were false, and known by him to be false, is not sustained by proof that, while he had no knowledge or belief on the subject, he made such representations supposing them to be true, without reason therefor, but nevertheless made them as positively known facts.

Prigg & Williams, for plaintiffs in error.

Vandeveer & Martin, for defendant in error.

CUNNINGHAM J. GREENE, POLLOCK, JJ., concurring.

OPINION

CUNNINGHAM, J.:

The defendant in error had judgment in the court below and the plaintiffs in error bring the same here for review. The defendants were, on the 30th of January, 1897, and had been for several years prior thereto, engaged in the banking business in the city of Hutchinson, running a private bank known as the Bank of James St. John & Co. Plaintiff was a depositor, holding at that time its certificate of deposit in the sum of $ 1000, and also having on general deposit $ 224. On that date James St. John & Co. sold out their bank, with the good-will and fixtures belonging thereto, to the Bank of Hutchinson, which, for a full consideration, undertook to pay all the depositors of the former bank, which issued a circular to all its depositors informing them that its business had been merged in the Bank of Hutchison, and requesting them to call at their earliest convenience and transfer their accounts. The Bank of Hutchinson issued a circular on the same date and enclosed it under the same cover, announcing that the banking business of James St. John & Co. had been merged in the Bank of Hutchinson, and that thereafter the business of both banks would be transacted at the offices of the Bank of Hutchinson. Before plaintiff received these circulars he called at the Bank of Hutchinson and was informed by its cashier, in the presence of Mr. McCandless, of the merger of the two banks, and at that time transferred his general account to the Bank of Hutchinson. A few days thereafter, and after having received the circulars, he again called at the Bank of Hutchinson and surrendered his certificate of deposit issued by James St. John & Co., and took a certificate of deposit for the same amount from the Bank of Hutchinson. At this time, it is claimed, the Bank of Hutchinson was in a failing condition, and about three months thereafter it failed, and plaintiff received upon his deposit therein fifty per cent. thereof. This action was brought by him against the plaintiffs in error to recover the balance of the moneys which he had deposit with the Bank of James St. John & Co.

Much contention exists between the attorneys of the respective parties as to the character of the action set out in the petition -- whether it is on contract or in tort. The petition is much involved and inartificial, and from its reading much reason is found for either contention. We think that the better construction of it is that the action is upon contract for the recovery of the moneys which plaintiff had had on deposit with the bank of St. John & Co., and that for the purpose of avoiding the effect of the novation which he had made by becoming a depositor in the Bank of Hutchinson, the plaintiff pleaded in his petition that the same was accomplished by and through the fraud of James St. John and A. W. McCandless, and this he did by asserting that they "well knew the financial standing of the Bank of Hutchinson, and knew that it was in a failing condition, and that its available funds were largely insufficient to discharge its liabilities," and that, knowing all these things, they issued the circular heretofore mentioned for the purpose of inducing their depositors to transfer their accounts to the Bank of Hutchinson. Upon the trial of the action, no evidence was introduced by ...