Miller v. Farmers' Bank & Trust Co. of Fort Collins

• Decision Date: 03 October 1927
• Docket Number: 11575.
• Citation: 260 P. 112,82 Colo. 373
• Parties: MILLER v. FARMERS' BANK & TRUST CO. OF FORT COLLINS.
• Court: Colorado Supreme Court

260 P. 112

82 Colo. 373

MILLER v. FARMERS' BANK & TRUST CO. OF FORT COLLINS.

No. 11575.

Supreme Court of Colorado

October 3, 1927

Department 2.

Error to District Court, Larimer County; Robert G. Smith, Judge.

Action by Frank C. Miller against the Farmers' Bank & Trust Company of Fort Collins, a corporation. Judgment for defendant, and plaintiff brings error.

Affirmed.

Thomas H. Gibson, of Denver, for plaintiff in error.

Paul W Lee and Geo. H. Shaw, both of Ft. Collins, and Walter E Bliss, of Greeley, for defendant in error.

ADAMS J.

The names of the parties appear here in the same order as at the trial. We shall refer to Miller as plaintiff and to the bank as defendant, as there aligned.

The complaint contained three counts: First, to recover a balance claimed by plaintiff in an open checking account in defendant bank; second, for a balance that he claimed in his savings deposits; and, third, for alleged conversion of a promissory note. At the close of the evidence, the court granted defendant's motion for a directed verdict, and plaintiff brings the case here for review.

The disputed amounts on the first two causes are included within the period of May 17, 1924, and September 25, 1924. Plaintiff, a customer of the bank, operated a garage business in Ft. Collins under the name of 'Northern Garage,' and at various times sold automobiles of different makes either as agent, or as salesman on commission. He was frequently away from the city, and left the business with his wife. She not only signed checks, but also made deposits to plaintiff's credit in the bank. Some of the money so deposited came from the garage and automobile business. Other items of deposit, whether plaintiff's or his wife's, were connected with checks that are now sought to be repudiated by plaintiff, as, for instance, when a car was bought and sold, he claims the proceeds deposited to his credit therefor, but disclaims responsibility for the check given in payment of the wholesale price of the same car.

Plaintiff's general bank account, declared upon in the first count, was kept under the name of 'Northern Garage.' The balance claimed and sued for on this count was $42,592.60. The savings account, claimed in the second count, was in plaintiff's own name, and the balance claimed thereon was $1,039.58; the two making a total of 43,632.18. For all purposes here, we shall treat the first two causes as one and speak later of the third cause, relating to the note alleged to have been converted. At the trial, plaintiff admitted that $31,858.97 had been applied to the payment of his legitimate bills, but later corrected his testimony and reduced his admission to $29,746.97. He has now modified his original demand on the first cause to an alleged balance thereon of $12,654.63. The court allowed him nothing on any of his claims. Disputed checks of the Abbott were at first involved, but plaintiff having conceded that all of the Abbott checks and some of his wife's checks were applied to the payment of plaintiff's legitimate bills, we therefore limit our discussion about the checks to those issued by the wife. The wife signed some of these checks in her own name, some in the name of her husband, the plaintiff, and some in the name of the garage; but they were all charged to plaintiff's account. Defendant claims that plaintiff's general checking account became overdrawn, that the savings account was applied by the bank on such overdraft, and that nothing was left to plaintiff's credit in either account.

The bank claimed that they were led by the husband and wife to believe that they were business partners, and that the wife might sign checks for the husband, but they both denied it and joined their testimony at the trial in an attempted repudiation of the wife's authority to sign checks in any amount, or for any purpose, for the Northern Garage, or on her husband's account. Plaintiff left a signature card at the bank, with his name on it, and without his wife's, but relying on representations alleged to have been made by the husband and wife, the bank honored her signature. Each month the bank sent statements showing amounts of deposits, checks, and balances, which included all of the disputed items. Plaintiff himself offered some of these statements in evidence, but claimed not to have received them promptly. However, he said that he was home at least once a week, and further said:

'I did check up on the stubs of the checks, and saw that the business was running along as it should. * * * I just take the stubs on my check book to see what has been checked out, and I have the deposits; so I keep track that way.'

He said also, at another trial, that he relied on the bookkeeper and the check book. The bookkeeper filled out the stubs to the checks, so inspected by plaintiff.

Plaintiff also testified on cross-examination:

'Q. If the testimony of your wife would disclose the fact that the $1,263 check, payable to Protective Finance Corporation, dated August 8, 1924, was written in payment for the Dort car which was later sold to Mr. Shinn, would it still be your position that you would want to recover that $1,263 and also the amount of the Shinn note? A. Yes, sir; it would be.

'Q. That would still be your position? A. Yes, sir.

'Q. That is to say, that although you had nothing to do with the Dort car, and wanted to charge the bank with the money that went out of your account to pay for it, yet at the same time, you claim title to the note that was given by the buyer of the same car? A. Yes, sir; I do.

'Q. Now is that your same position with respect to these other transactions? A. It is.

'Q. You objected to the item of $1,800 covered by the check to Don Hogan, Incorporated, on May 16, 1924, did you not? A. I do.

'Q. On May 24, 1924, there passed to the credit of your account the sum of $2,000. What was that $2,000 for? A. For the payment of that car.

'Q. And on the face of that, it shows you made a profit of $200? A. I don't know if I made a profit of $200 after all the...