Lutz v. Williams.

• Citation: 84 W.Va. 216
• Parties: D. E. Lutz v. J. E. Williams et al.
• Decision Date: 13 May 1919
• Court: Supreme Court of West Virginia

84 W.Va. 216

D. E. Lutz

v.J. E. Williams et al.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1919.

Decided May 13, 1919.

1. Judgment Res Judicata.

A cause of action between persons who were parties to a former adjudication, set up in a subsequent action between them, is not res judicata by the former decision, unless it is identical with the one actually or constructively heard and determined in the former suit. (p. 217).

2. Same Res Judicata Identity of Issue.

A cause of action against a bank as the depositary of an agent in his individual capacity, is not identical with one against the same bank as the depositary of the principal of the same agent; wherefore judicial determination of the latter does not preclude an action for the former, (p. 217).

3. Same Res Judicata.

A reservation in a decree in such former adjudication, saying it shall not be construed to be an adjudication as to the title to the fund in question, except that it does not belong to the principal, saves the right to proceed against the bank as depositary of the agent, (p. 217).

4. Banks and Banking Special Deposit Appropriation by Bank.

A bank to which a depositor owes a matured debt may appropriate his general deposit to payment of the debt; but it cannot so appropriate or apply a deposit made for a known special purpose, or under an agreement that the depositor may check it out for special purposes, (p. 219).

5. Same.

An agreement inhibiting such appropriation need not be proved n any particular manner. Evidence of the quality and quantity required for proof of any other parol agreement suffices. (p. 224).

6. Same Special Deposit in Bank Question for Jury.

Direct and positive oral evidence of such an agreement, strongly sustained by admitted facts and circumstances, suffices to carry he issue as to its existence to the jury, notwithstanding slight ontradictions and inconsistencies in the testimony of the depositor, elating to incidental transactions and attendant circumstances, (p. 224).

7. Stipulations Construction Fund in Litigation.

A stipulation between the holder of a fund against which judgment creditors are proceeding by suggestion and such creditors, as co the amount of the fund, withdrawing that question from the litigation, is binding upon the parties, notwithstanding revelation by the evidence of ground of dispute as to a relatively small item included. (p. 225).

8. Interest Appropriation of Special Deposit.

Wrongful appropriation by a bank of a special deposit, to payment of a debt due to it by the depositor, and its use of the money during the litigation ovei it, makes the bank liable for interest on the fund. (p. 225).

9. Stipulation Fund Involved Bight to Interest.

Failure of a stipulation as to the amount of the fund in controversy in such case, to provide for payment of interest, in the event of a result adverse to the bank, does not preclude right to a judgment for interest on the fund. (p. 225).

Error to Circuit Court, Randolph County.

Action by D. E. Lutz against J. E. Williams and others. Judgment for plaintiff, and the People's National Bank of Elkins brings error.

Affirmed.

W. B. & E. L. Maxwell and D. H. Hill Arnold, for plaintiff in error.

Samuel T. Spears, and A. M. CunnigJiam, for defendant in error.

poffenbarger, judge:

The decision on the former writ of error in this case, reported in 79 W. Va. 609, reversed a judgment rendered on a verdict directed and found in favor of the Peoples National Bank of Elkins, in a proceeding against it by D. E. Lutz, a judgment creditor of J. E. Williams, on a suggestion founded upon an execution issued on a judgment; and condemned, as being unsound and untenable, several grounds of defense and all of the theories of right of recovery set up by the plaintiff, except one, namely, that of a special deposit of the fund in question by Williams, the debtor, making it available for satisfaction of the claims of the plaintiff and others similarly situated. This theory constituted the basis of the new trial resulting in a verdict for the plaintiff, on which judgment was rendered not only for him, but also for six other judgment creditors of Williams, under a stipulation filed in the case. To this judgment, the bank obtained a writ of error.

A decree entered in seven chancery causes heard together and pertaining to this fund was offered in support of a plea of former adjudication, but, in view of the character of the decree and the reservations therein made, the court held the matter set up in this case was not res judicata by that decree. When Williams' checks drawn against the fund in question were dishonored, Lutz and six other holders thereof brought separate chancery suits against the bank, to obtain said fund, upon the theory of agency in Williams for the Virginia Timber Company and title to that fund in his principal. All of them were matured and heard together and the theory on which they proceeded wholly failed, the court holding that the fund did not belong to the Virginia Timber Company, but that, on the contrary, it was money paid by that com- pany to Williams for timber. Accordingly, it was held that the plaintiffs should take nothing by their several bills and that the bank recover its costs from them. Rights were reserved, however, to the extent and in the manner following: "But nothing herein contained shall be taken to prejudice the right of the plaintiffs to proceed against J. B. Williams for said debt. ***** It is further ordered that nothing herein shall be construed to be an adjudication as to the title or ownership of the funds in question in this suit, claimed to be in the hands of the said Peoples National Bank, except to decide that said fund is not owned by the said Virginia Timber Company." Of course, this decree amounts to an adjudication in favor of the bank, but the saving clause limits and defines the scope of that adjudication, for it is a part of the decree. The effect of a judgment or decree, like that of any other written instrument, is determinable by the language in which it is framed. As in any other case of interpretation, one clause, phrase or word may limit or restrain the effect of another. The adjudication in favor of the bank is qualified by a clause showing the extent to which it goes, namely, a decision against title in the Virginia Timber Company. Exoneration of the bank from liability, on the ground that it was not a mere depositary of that company, precludes the theory of exoneration on any other ground. The maxim, Expressio unius est exclusio alterius, applies. The trial court's decision as to the decree, however, was right for another reason. The cause of action first set up was against the bank in the capacity of depositary of the Virginia Timber Company. This action proceeds upon an entirely different basis. Its ground is that the bank is the depositary of J. E. Williams. It matters not that both Williams and the bank were parties to the chancery causes in which the decree was entered. What was involved in those suits is determinable by the ground of action set up in the bills, all of which were alike and all of which differed in respect of the ground of action set forth in them from the one stated in the declaration in this case. The present cause of action was not set up in the chancery causes nor adjudicated in them. A cause of action between the parties to a former adjudication is not res judicata, unless it is identical with the one actually or constructively decided between them. Bierne v. Ray, 49 W. Va. 129; Hudson v. Iguano Land & Mining Co., 71 W. Va. 402; DeSollar v. Hanscome, 158 U. S. 216; Russell v. Place, 94 U. S. 606; Cronuvell v. County of Sac, 94 U. S. 351.

The evidence adduced on the former trial, tending to prove the fund in question to have been a special deposit, was deemed and held to be sufficient to carry the issue as to whether it was or not, to a jury for determination. The evidence as to the character of the deposit introduced on the second trial varies in some respects from that considered on the former writ of error, but the strength of its tendency to establish the plaintiff's case has not been materially impaired, if at all. Williams, of course, was the principal witness, and slight inconsistencies and contradictions in his testimony are invoked against its sufficiency to justify the giving of the instructions based upon it and sustain the verdict. He had been the agent of one Kelton, in extensive transactions in timber and had made himself liable to the bank for Kelton's indebtedness to it, in the sum of more than $5,500.00. After having incurred this indebtedness, he continued to transact business with the bank, in the handling of timber for other parties, particularly, the Virginia Timber Company. The Kelton failure had occurred in November 1909, and Williams' pass book introduced in evidence shows an account beginning December 26, 1909, but does not disclose any charge of the Kelton balance or indebtedness. From that date until June 30, 1910, he made several small deposits, against which his checks seem to have been honored. On June 30, 1910, he deposited a draft of the Virginia Timber Company for $640.00, and upon that occasion he says he entered into the agreement relied upon in this case, with D. V. Moyle, assistant cashier of the bank, who, he says, then wrote the words, "Pur Agent," after his name in the pass book. He says he told Moyle he was purchasing ties for the Virginia Timber Com- pany, as their agent, that they were to send him money with which to pay for them, that he wanted it entered in the bank as J. E. Williams, Purchasing Agent, and that all checks would be signed as such agent for the Virginia Timber Company. On July 23, 1910, he deposited another draft of the Virginia Timber Company for $374.92. On July 26, 1910, he made a deposit of $302.16, which he thinks came from that company also, but, as to that, he is not certain. Notwithstanding his heavy indebtedness to...