Lamb v. Ulrich

• Decision Date: 26 December 1923
• Docket Number: Case Number: 14342
• Citation: 1923 OK 1178,94 Okla. 240,221 P. 741
• Parties: LAMB et al. v. ULRICH, Receiver.
• Court: Oklahoma Supreme Court

1923 OK 1178

221 P. 741

94 Okla. 240

LAMB et al. v. ULRICH, Receiver.

Case Number: 14342

Supreme Court of Oklahoma

Decided: December 26, 1923

Syllabus

¶0 1. Banks and Banking--Insolvency of National Bank--Invalidity of Transactions--Statute.

The law applicable to the instant case is section 5242 of the Revised Statutes of the United States, which is as follows:

"All transfers of the notes, bonds, bills of exchange, or other evidence of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgment or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter or with a view to the preference of one creditor to another, except in payments of its circulating notes, shall be utterly null and void."

2. Appeal and Error--Sufficiency of Petition--Amendments.

The court may, before or after judgment in furtherance of justice, allow the petition to be amended to conform to the facts proved, and the judgment of the trial court will not be reversed because of defects or omissions in the petition, when such defects or omissions are supplied by the proof. Held, that any defects or omissions in the petition in the instant case are supplied by the proof.

3. Banks and Banking--"In Contemplation of Insolvency."

A bank or a business concern may be considered to be acting in contemplation of insolvency when, in making some disposition of its assets, it is actuated by its knowledge of its insolvency.

4. Same--Payment to Bank's Creditor as Preference.

The intent to give a preference is presumed when a payment is made to a creditor by a bank whose officers know of its insolvency, and, therefore, that it cannot pay all of its creditors in full.

5. Trial--Demurrer to Evidence--Effect.

The test applied to a demurrer to the evidence is that all the facts, which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn from the evidence, are admitted. The court cannot weigh conflicting evidence, but must treat the evidence as withdrawn which is most favorable to the demurrant.

6. Trial--Verdict -- Inconsistent Finding--Judgment.

The statute law of this state, section 553, Comp. Stat. 1921, is:

"When the special finding of facts is inconsistent with the general verdict, the former controls the latter and the court may give Judgment accordingly."

7. Same--Submission of Special Questions to Jury.

Where special questions are submitted to the jury, it is error for the court, after conclusion of the arguments, to charge the jury to make their special findings conform to their general verdict. The sole duty of the jury with reference to such questions is to answer them truthfully. Held, it was clearly erroneous for the court to require the jury to make their answers to the particular questions of fact harmonize with the general verdict, or to suggest that the findings should be consistent each with the other. Each of the questions propounded should be answered truthfully, in accordance with the preponderance of evidence upon the question submitted.

R. L. Disney, for plaintiffs in error.

Johnson & McGill, for defendant in error.

THOMPSON, C.

¶1 This action was commenced in the district court of Carter county, Okla., by Bernard Ulrich, receiver for the State National Bank of Ardmore, Okla., defendant in error, plaintiff below, against J. A. Lamb, C. E. Murphy, and A. B. Murphy, plaintiffs in error, defendants below, for recovery of notes and securities, claimed by him as receiver for the bank in the sum of $ 10,008.95. The parties will be referred to as plaintiff and defendants, as they appeared in the lower court. The petition alleges, in substance, that the plaintiff was receiver for the State National Bank of Ardmore, which was declared insolvent by the Comptroller of Currency on February 25, 1922; that on February 23, 1922, the defendants had, among their depositors in said bank, the sum of $ 10,008.95; that defendants J. A. Lamb and C. E. Murphy were stockholders in said bank; that on the 23rd day of February, 1922, defendant J. A. Lamb procured the transfer to him and his codefendants of notes and securities of said bank to the amount of $ 10,008.95 in the form of a note for $ 4,000, due on demand, with accrued interest of $ 105, and a note for $ 1,500, and other securities, mostly county warrants, amounting to $ 4,403.95, and that said defendant J. A. Lamb gave checks to the bank on various deposit accounts of himself and his codefendants and attached five checks as exhibits to the petition; that the defendants, as shareholders in said bank, well knew the insolvent condition of said bank, and that they conspired together to secure the above mentioned securities with a view of having themselves preferred over other creditors and to prevent the application of the assets of the bank in the manner prescribed by law, as said securities were delivered to defendant J. A. Lamb to be apportioned by him among the defendants; that it was not the custom and practice of banking institutions that are in good condition to transfer to their depositors notes and other securities in lieu of their deposits, and that it is illegal for a bank to prefer one creditor to another; that said transaction was null and void, and that the plaintiff was entitled to the possession of said notes, warrants, bonds, and securities, and had made demand therefor and had been refused; and prayed for judgment against the defendants for the return of said notes, warrants, bonds, and securities, and that in the event return of same could not be had that he have judgment against the defendants for their value, together with interest and all damages suffered by reason of the wrongful detention of said securities, and costs. To the petition of plaintiff the defendants filed their general demurrer, which was overruled and exceptions taken, and defendants filed as their answer a general denial. Upon these issues the case was tried to a jury, which trial resulted in a general verdict in favor of the plaintiff for the return of the property, or its value, and signed by ten of the jurors, and the jury also returned a special verdict to interrogatories propounded, as follows:

"First. Did J. W. Richardson as cashier of the State National Bank assign the notes and warrants in issue in this case to the defendants with a view to preferring the defendants over the other creditors of the bank?

"Answer: Yes.

"Second. Did J. W. Richardson as cashier of the State National Bank transfer the notes and warrants in issue in this case to the defendants in contemplation of insolvency?

"Answer: Yes"

¶2 --which was also signed by ten of the jurors.

¶3 Motion for new trial was filed, heard, and overruled; exceptions reserved and judgment was entered upon the verdict of the jury, in favor of the plaintiff and against the defendants, for the return of the property, or its value, from which judgment of the court defendants appeal. Nine specifications of error are set up by attorney for defendants in his brief, but the same are argued under seven general heads, which are as follows:

"First Assignment of Error. The court erred in overruling the motion of the plaintiffs in error for a new trial.

"Second Assignment of Error. The court erred in overruling the demurrer to the petition.

"Third Assignment of Error. The court erred in admitting evidence on the part of the defendant in error over the exceptions of the plaintiffs in error.

"Fifth and Seventh Assignments of Error. The court erred in overruling the motion of plaintiffs in error that the jury be directed to return a verdict in favor of the plaintiffs in error. Also, said court erred in overruling the demurrer of the plaintiffs in error to the evidence adduced on the part of the defendant in error.

"Sixth and Eighth Assignment of Error. Said court erred in instructing the jury that their answer to the interrogatories propounded by the plaintiffs in error and submitted to the jury must necessarily be consistent with the verdict of the jury; and in prejudicing the jury by showing them by his query to counsel for defendants in error, whether they insisted on answer to interrogatories propounded, that it was the plaintiffs in error who propounded and insisted on answer to said interrogatories; whereas, the jury should have been uninformed as to which side of said controversy insisted on said answer to said interrogatories.

"Tenth Assignment of Error. Said court erred in refusing to give the following instructions requested by the plaintiffs in error, to the jury, to wit: (setting up several requested instructions refused by the court).

"Tenth Assignment of Error. Said court erred in giving the following instructions to the jury over the objections and exceptions of the defendant, to wit:" (Setting up several instructions given by the court).

¶4 Counsel for defendants very properly contend that the true standard by which the sufficiency of the petition should be measured is section 5242 of the Revised Statutes of the United States, which is as follows:

"When Transfers Void. All transfers of the notes, bonds, bills of exchange or other evidence of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of

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