Raynor v. Scandinavian-American Bank

• Decision Date: 03 November 1922
• Docket Number: 17216.
• Citation: 122 Wash. 150,210 P. 499
• Court: Washington Supreme Court
• Parties: RAYNOR et al. v. SCANDINAVIAN-AMERICAN BANK et al.

210 P. 499

122 Wash. 150

RAYNOR et al. v. SCANDINAVIAN-AMERICAN BANK et al.

No. 17216.

Supreme Court of Washington

November 3, 1922

Department 1.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by L. G. Raynor and another against the Scandinavian-American Bank, Forbes P. Haskell, Jr., and another on two causes of action. From an order granting defendant Haskell's motion for a new trial on the first cause, after judgment for plaintiffs, the latter appeal; and from a judgment and an order denying a new trial on the second cause, the defendants appeal. Order granting new trial on first cause reversed, and order denying new trial on second cause, and judgment on both causes, affirmed.

Guy E Kelly, Thos. MacMahon and F. D. Oakley, all of Tacoma, for appellants.

L. B Da Ponte, of Seattle, for respondents.

FULLERTON J.

The controversy in this cause has its origin in the insolvency of the Scandinavian-American Bank of Tacoma. On Saturday January 15, 1921, certain employees of the Northern Pacific Railway Company severally deposited with the bank named their pay checks that day received from the railway company by whom they were employed. The checks were drawn on the National Bank of Tacoma, and were listed by the receiving bank when the deposits were made on deposit slips in general use by the bank. Each slip contained the following stipulation printed on its margin:

'Checks on this bank and on other Tacoma clearing house banks will be credited conditionally. If not found good at the close of business, they will be charged back to depositors and the latter notified of the fact. In making this deposit the depositor hereby assents to the foregoing conditions.'

On the day the deposits were made, and before the checks were cashed by the bank, the bank was taken in charge by the state bank commissioner because of its insolvent condition, and placed in the immediate control of one Forbes P. Haskell for liquidation. On the next business day, namely, Monday, January 17, 1921, at about 8:30 o'clock in the morning, the person in charge of the bank took the checks to the payer bank, presented them for payment, and received a credit as such liquidator on the books of that bank for the total amount of the checks. Later on in the same day, but before the opening of the payer bank for general business, the drawers of the checks and the several payees thereof endeavored to stop their payment by notifying the bank, both orally and in writing, not to pay them. The bank, because it had prior thereto honored the checks, refused to recognize the right of the parties to stop payment, and so informed them. Thereupon, pursuant to an agreement participated in by all of the parties, the proceeds were left with the payer bank until such time as it could be determined by court procedure which of the parties were entitled to the fund.

Later on the payees of the checks assigned in writing to L. G. Raynor and R. F. Graham all their right, title, and interest in the subject-matter of the controversy, who thereupon instituted the present action to determine the ownership of the fund, naming as defendants in the action the National Bank of Tacoma, the Scandinavian-American Bank and Forbes P. Haskell, the person specially in charge of the liquidation of the insolvent bank, but did not name as a defendant the bank commissioner.

The several payees of the checks had, at the time of the deposit of the checks with the bank, a deposit account therein, which the credit given for the checks augmented. Subsequently, but whether before or after the assignments to the plaintiffs were made the evidence is not very clear, the several payees presented to the commissioner, liquidating the bank, claims for the amount of their total balances. These were allowed by the commissioner as general claims. Included in the complaint, as a second cause of action, was a claim to certain Liberty Bonds, the facts concerning which we will later state.

The action was tried by the court sitting without a jury. At the conclusion of the evidence the National Bank of Tacoma was dismissed from the action. Judgment was entered against the defendant Haskell, as bank commissioner having in charge the liquidation of the bank on both causes of action. No mention was made of the defendant Scandinavian-American Bank. The defendant Haskell thereupon moved for a new trial, which motion was granted as to first cause of action, but denied as to second. The plaintiffs appeal from the order in so far as it grants a new trial, and the defendants Scandinavian-American Bank and Haskell appeal from the entire judgment and from the order refusing to grant a new trial as to the second cause of action.

Before passing to the merits of the controversy, certain preliminary objections must be noticed. The plaintiffs contend that the order granting the new trial must be reversed and the cause remanded, with instructions to reinstate the original judgment without a consideration of the merits of the order. The contention is founded on the claim that the motion for a new trial came too late and that the court was thus without jurisdiction to entertain it. But in actions tried by the court without a jury, the motion is in time, if made within two days after notice in writing of the decision of the court. Rem. Comp. Stat. § 402. Here notice in writing of the decision of the court was not given, and the defendants learned of it on the third day after its rendition and entry. They filed and served their motion on the day following the day they learned of the rendering of the decision, and we hold it to be timely made.

The defendants complain that there is a misjoinder of parties to the action. The complaint, as we have before stated, named as parties defendant, the Tacoma National Bank, the insolvent bank, and the officer specially in charge of the liquidation of the insolvent bank. It is contended that the supervisor of banking is also a necessary party, and that the omission to make him such is fatal to any form of recovery which affects the assets of the insolvent bank. But we cannot think the contention well founded. The objection is made in this court for the first time. In the court below the officer specially in charge of the bank, and who was made a defendant, defended as the representative of the insolvent bank and of the state banking department without suggesting a want of authority, and without interference by his superior officer, who must have known of his action. The objection now comes too late.

The defendants make the further objection that the plaintiffs are estopped from asserting a special claim for the amount of the checks against the insolvent bank for the reason that their assignors included such amount in their general claims filed with the liquidating officer of the bank. But this act alone is insufficient to constitute an estoppel.

'It is fundamental that a party relying upon an estoppel must show that he has been prejudiced by the act of the party whom he is seeking to estop. Estoppels operate only towards parties or privies, and the party who pleads an estoppel must be one who has in good faith been led to his injury.' Butler v. Supreme Court of Foresters, 53 Wash. 118, 101 P. 481, 26 L. R. A. (N. S.) 293.

There was here no misleading nor injury. Neither party changed his course of dealing because of the nature of the claims. The money still remained impounded, and the controversy over it continued until it finally culminated in the present action. It is true there is no direct evidence that the amount of the checks was included in the claims by mistake or inadvertence, but this was not a necessary showing to prevent an estoppel. The showing that there was no change in the relation of the defendants, with reference to the checks to their disadvantage, is sufficient. The precise question was determined in Wuerpel v. Commercial Germania Trust & Savings Bank, 238 F. 269, 151 C. C. A. 285, where it was held that a creditor, by filing a general claim and receiving dividends thereon, is not estopped from asserting a right to a preferential payment, in the absence of a showing of prejudice.

As grounds for reversing the order granting a new trial, the appellants make three principal contentions: (1) That the checks were wrongfully paid by the National Bank of Tacoma, because paid before the hour of the day the bank was usually opened to the public for the transaction of business, and because before that hour a stop-payment order had been given the bank; (2) that because of the condition attached to the deposit of the checks, as expressed on the deposit slips, the bank never had title to the checks, that, in consequence the bank commissioner had no title to or right to collect them, and that when he did so the proceeds of the collection remained the property of the depositors, and did not become assets of the insolvent bank; and (3) that if it be found that the stop-payment order was not in time, and it be held that the bank acquired title to the checks by the deposit, then the bank became the trustees of the depositors ex maleficio on the receipt of the checks, because of the fraud practiced upon them by the bank officers in receiving the deposits after they had knowledge of the bank's insolvent condition, and knowledge that it must be closed and liquidated because of such insolvent condition.

Noticing the first of the contentions made, it is a general rule since a check upon a bank does not operate as an assignment of any part of the funds to the credit of drawer with the bank, and since the bank is not liable to the holder unless and until it accepts or certifies the check, that the drawer of a check may countermand its payment at any time before it is...