National Sur. Corp. v. Citizens State Bank

• Decision Date: 18 December 1986
• Docket Number: No. 84CA0520,84CA0520
• Parties: NATIONAL SURETY CORPORATION, and Dayco Corporation, Plaintiffs-Appellees, v. CITIZENS STATE BANK, d/b/a Citizens Bank, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 663

734 P.2d 663

NATIONAL SURETY CORPORATION, and Dayco Corporation, Plaintiffs-Appellees, v. CITIZENS STATE BANK, d/b/a Citizens Bank, Defendant-Appellant.

No. 84CA0520.

Colorado Court of Appeals,

Div. I.

Dec. 18, 1986.

Gorsuch, Kirgis, Campbell, Walker & Grover, P.C., James A. Jablonski, Arun Das, Denver, for plaintiffs-appellees.

Weller, Friedrich, Hickisch, Hazlitt & Ward, John R. Hickisch, David W. Kirch, Kenneth A.B. Roberts, Jr., Denver, for defendant-appellant.

PIERCE, Judge.

Defendant, Citizens State Bank, appeals a trial court judgment entered upon jury verdicts finding defendant liable to plaintiffs, National Surety Company and Dayco, in the amount of $48,429.84. Defendant also appeals the trial court award of prejudgment interest in the amount of $51,781.10 plus costs. We affirm in part and reverse in part.

Plaintiffs commenced this action in October 1977, alleging that defendant had wrongfully honored certain forged checks made payable to Dayco Corporation, and had credited the proceeds therefrom to the personal accounts of the individual responsible for the defalcations. The complaint set forth three claims for relief: (1) conversion; (2) monies had and received; and (3) breach of implied warranties. Pursuant to defendant's motion, the trial court initially dismissed the entire case for failure to state a claim under C.R.C.P. 12(b)(5).

On appeal by plaintiffs, this court reversed as to plaintiffs' conversion and monies had and received claims, while affirming the dismissal of plaintiffs' breach of implied warranties claim. See National Surety Corp. v. Citizens State Bank, 41 Colo.App. 580, 593 P.2d 362 (1978), aff'd, 199 Colo. 497, 612 P.2d 70 (1980).

On remand, the trial court granted plaintiffs' motion for summary judgment. Again, an appeal was taken, and this court reversed and remanded the case for further proceedings. See National Surety Corp. v. Citizens State Bank, 651 P.2d 460 (Colo.App.1982). Whereupon a jury trial on the merits was held in early February 1984, and an adverse verdict against defendant was returned finding, among other things, that defendant did not exercise good faith in the transactions. Judgment was entered on this verdict.

I.

Defendant first contends that the plaintiffs were required to elect between either conversion or monies had and received as the theory upon which they would rely for relief. Defendant contends that this was mandated by the Supreme Court in its decision, supra, in which it affirmed our holding in the first appeal. We disagree.

In affirming our reinstatement of two of the claims, the Supreme Court discussed the viability of each of plaintiffs' claims separately, and concluded that:

"[T]he plaintiffs have a cause of action against the bank either ex delicto for conversion or ex contractu for monies had and received."

Contrary to defendant's contention, the Supreme Court did not attempt to limit plaintiffs' relief to either conversion or to monies had and received, one to the exclusion of the other; but instead, it held only that each claim was sufficient to state a claim for relief under C.R.C.P. 12(b)(5). Thus, we conclude that, in the context of this case, plaintiffs were not required to select one theory or the other, and the trial court did not err in failing to require them to do so.

II.

Defendant's next contention concerns the instructions and interrogatories submitted to the jury. It asserts error in the trial court's refusal to submit its tendered instruction regarding Dayco's alleged negligence. We find no error in refusing the instruction.

The failure to give requested instructions is not error if the matter is covered adequately by other instructions. Brunner v. Horton, 702 P.2d 283 (Colo.App.1985).

Here, the jury was properly instructed on the definition of negligence. This instruction as well as the interrogatory concerning plaintiffs' alleged negligence was properly submitted to the jury. The jury found that plaintiff Dayco Corporation was not negligent in the manner in which it processed and accounted for checks received from its customers. We are satisfied that the instructions and interrogatories fully and adequately covered the issues; thus, there was no error in refusing defendant's offered instruction.

III.

Defendant contends that the trial court found erroneously that plaintiffs were entitled to recover on a third theory of relief not found in the pleadings. We find no need to address this contention.

The jury returned special interrogatories in which it found that plaintiffs had sustained losses as a result of defendant's conversion of the forged instruments. Additionally, the jury also found defendant liable on plaintiffs' theory for monies had and received. As either verdict was sufficient to sustain the judgment entered, it is unnecessary to consider whether the trial court's conclusion as to a third basis for relief was erroneous. See H.M.O. Systems, Inc. v. Choicecare Health Services, Inc., 665 P.2d 635 (Colo.App.1983).

IV.

Defendant's next contention concerns the trial court's award of prejudgment interest to the plaintiffs. Specifically, defendant notes that the employee responsible for the forgeries withdrew the entire...