Peak v. Ellicott

• Decision Date: 01 July 1883
• Parties: MATTHIAS PEAK v. JOSEPH T. ELLICOTT, as Assignee of the Riley County Bank of Manhattan
• Court: Kansas Supreme Court

1 P. 499

30 Kan. 156

MATTHIAS PEAK v. JOSEPH T. ELLICOTT, as Assignee of the Riley County Bank of Manhattan

Supreme Court of Kansas

July 1, 1883

Error from Riley District Court.

ACTION begun February 17, 1882, by Matthias Peak against Joseph T Ellicott, as assignee of the Riley County Bank of Manhattan. The petition, omitting court and title, is as follows:

"The said Matthias Peak, plaintiff above named, complaining of the defendant herein named, sets forth and shows unto the court that the Riley County Bank of Manhattan, Kansas, was at the time hereinafter named a corporation created by and existing under the laws of the state of Kansas, and doing and transacting a general banking business in Manhattan, Kansas that during the year 1881, J. K. Winchip, deceased, was the cashier of said bank, and was at the time more particularly named hereafter; that on the 12th day of October, 1881, the said plaintiff applied to the said bank through its cashier for a loan of seven hundred and eighty-two 50/100 dollars for the period of four months from that date; that his said application was granted; that he thereupon executed his promissory note in writing of that date, which is in the words and figures following:

"$ 782.50. MANHATTAN, KANSAS, Oct. 15, 1881.

Four months after date, for value received, I promise to pay to the order of the Riley County Bank of Manhattan, Kansas seven hundred eighty-two 50/100 dollars, at the Riley County Bank, at Manhattan, with 12 per cent. per annum from maturity until paid. M. PEAK.'

And delivered the said note to J. K. Winchip, cashier of said bank, and received from him the money therefor, less a discount for the period above named; that afterward, to wit On the 22d day of November, 1881, said plaintiff had on deposit in said Riley County Bank to his credit a large sum of money, to wit, between three and four thousand dollars and Was desirous of drawing the same from said bank, and made application to its cashier for the same; that the said J. K. Winchip, cashier as aforesaid, then asked the plaintiff to pay his said note of $ 782.50 as above set forth, and thereupon, although the said note was not due, agreed to and with the said cashier of said bank to pay the same; that the said J. K. Winchip, cashier as aforesaid, told the plaintiff that the note was not there, but that he would send and get the same, and thereupon the plaintiff gave him, the said J. K. Winchip, cashier as aforesaid, seven hundred and eighty-two 50/100 dollars for the purpose of paying and to be applied on said note, and made and gave to plaintiff a receipt against said note, which receipt is in words and figures as follows:

"'The Riley County Bank of Manhattan, Kansas, Nov. 22, 1881, received of M. Peak seven hundred and eighty-two 50/100 dollars, in payment of note for same amount, due February 12, 1882.

J. K. WINCHIP, Cash.'

"And plaintiff, further complaining, says: That at the time said receipt was executed and the money so received by said bank, the Riley County Bank was not the owner or holder thereof, but prior thereto had sold for a valuable consideration and had indorsed and delivered said note to the Harrison National Bank of Cadiz, Ohio, which, at the time of the transaction set forth, was the owner and holder thereof, and that the said sum of money so paid by him was never transmitted to the Harrison National Bank of Cadiz, Ohio, nor was said note returned to him by said bank; that the said J. K. Winchip, cashier as aforesaid, by his statements induced said plaintiff to believe that said bank of which he was cashier was still the owner and could control the aforesaid note.

"Further complaining, plaintiff says: That on the 15th day of February, 1882, when said note matured, the Harrison National Bank of Cadiz, Ohio, presented said note for payment, and said plaintiff was compelled and did pay to the said Harrison national bank the sum of seven hundred eighty-two 50/100 dollars for the said note; that the sum of money, to wit, seven hundred eighty-two 50/100 dollars, so paid the said J. K. Winchip, cashier, was credited to the cash account of the said bank, and held and appropriated to its own use; that on the 26th day of December, 1881, the Riley County Bank of Manhattan, Kansas, made an assignment of all its property and effects to J. W. Blair in trust for its creditors, and that afterward the said Joseph T. Ellicott was appointed assignee of the bank, gave bond as required by law, and entered upon the discharge of his duties as such assignee; that as such assignee he has now in his possession property and effects belonging to said bank.

"Wherefore, plaintiff asks that the said sum of seven hundred eighty-two and 50/100 dollars be declared a trust fund, and that said assignee be ordered to pay to said plaintiff the full sum of seven hundred eighty-two and 50/100 dollars, with interest thereon, out of the first money received by him as such assignee, and for such other and further relief as he in equity is entitled to."

Thereafter the defendant demurred to the petition, upon the ground that it does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant. At the December Term of the court for 1882, the case came on for hearing; the demurrer was sustained, and judgment entered that the defendant recover his costs. The plaintiff excepted, and brings the case here.

Judgment reversed and cause remanded.

Green & Hessin, for plaintiff in error:

The receipt given by the bank as set forth in Peak's petition, and his instruction to the cashier, show, first, the estabtablishment of the trust; and, second, the setting apart of the fund by the cashier for the purpose of paying the note.

In Ingraham's case against the assignee, his petition shows the purpose for which the money was given; and the indorsement by the cashier on the copy preserved by the bank was a setting apart by the bank of the funds for that purpose. We think there can be no doubt that a trust was established in each case. (City of St. Louis v. Johnson, 5 Dill. 241; Levi v. Nat. Bank of Mo., 5 id. 104; Trinidad Nat. Bank v. Denver Nat. Bank, 4 id. 290; People v. M. & M. Bank, 78 N.Y. 269; Van Allen v. Am. Nat. Bank, 32 id. 1; Blaine v. Bourne, 23 Am. Rep. 429; Nat. Bank v. Ins. Co., 104 U.S. 54; Bayne, et al., Trustees, v. United States, 93 id. 642; Taylor v. Plumer, [3 Maule & Selwyn, 562,] referred to in Cook v. Tullis, 18 Wall. 341.)

The assignee stands in relation to the plaintiff in the same situation as the bank would have done had it remained solvent. The fact that the bank had made an assignment invests the assignee with only the rights the bank then had. This case should be heard and decided upon the allegations contained in the petition, and as if the bank itself were the defendant. Now the bank, having mixed this money with its own, the whole will be treated as a trust fund, except so far as the assignee can in this case distinguish it as belonging to the bank. (Nat. Bank v. Ins. Co., 104 U.S. 54; Pennell v. Deffell, 4 DeG., M. & G. 372, 378; Frith v. Cartland, 2 Hem. & M. 417, 420; Knatchbull v. Hallett, In re Hallett's Estate, 13 Ch. D. 696; In re LeBlanc, 14 Hun, 8.)

"Equity will follow money, even if put into a bag or an undistinguishable mass, by taking out the...