State v. Crook County Bank of Prineville

• Decision Date: 25 July 1922
• Citation: 208 P. 749,104 Or. 495
• Parties: STATE v. CROOK COUNTY BANK OF PRINEVILLE ET AL.
• Court: Oregon Supreme Court

208 P. 749

104 Or. 495

STATE v. CROOK COUNTY BANK OF PRINEVILLE ET AL.

Supreme Court of Oregon

July 25, 1922

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Action by the State of Oregon against the Crook County Bank of Prineville and another. Judgment for plaintiff, and the United States Fidelity & Guaranty Company appeals. Modified and remanded.

C. J Young, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for appellant.

Willard H. Wirtz, of Prineville (Jay H. Upton, of Prineville, on the brief), for the State.

BURNETT C.J.

For the sake of brevity in this opinion the Crook County Bank will be referred to as "the bank," and the United States Fidelity & Guaranty Company, its codefendant, will be designated as "the company."

On June 1, 1914, the bank, as principal, and the company, as surety executed to the state a bond in the sum of $20,000 conditioned as follows:

"Whereas, the said principal, the Crook County Bank, of Prineville, Or., has applied for a part of the current funds of the county treasurer, Crook county, Or., to be deposited in said bank, the amount whereof shall be subject to withdrawal or diminution by said treasurer, as the requirements of the said county shall demand, and which amount may be increased as the treasurer may determine; and whereas, said bank, in consideration of such deposit and for the privilege of keeping same, has agreed to pay the county of Crook interest on such sum at the rate of two per cent (2%) per annum on the amount of said deposit, computed upon the average daily balance, the same to be credited and paid monthly upon said daily average of such amount, and the said bank shall have on deposit for the month or any fraction thereof next preceding crediting all payment of interest which interest shall be computed and credited to the account and shall become thenceforth a part of said deposit:

"Now, therefore, if the said Crook County Bank, of Prineville, Or., shall at the beginning of each and every month render to the county treasurer a statement in duplicate, showing the daily balance of the county moneys held by it during the month next preceding, and the interest thereon, and shall well and truly keep all said sums of money so deposited, or to be deposited as aforesaid and the interest thereon, subject at all times to the check or order in writing of the county treasurer and his successor in office as shall be by him demanded, and shall calculate, credit, and pay said interest, as aforesaid, and shall in all respects keep Crook county and the county treasurer harmless and indemnified for and by reason of making said deposit or deposits, then this obligation shall be void and of no effect, otherwise to remain in full force and virtue."

After reciting the conventional characters of the parties and the bond, the complaint declares that on December 27, 1920, the bank became insolvent and put its property in the hands of the superintendent of banks for liquidation, and that on that date the county treasurer had on deposit in the bank $10,414.17, "the same being public funds of Crook county, state of Oregon, in said treasurer's hands." It is also charged that the bank had neglected to credit interest of 2 per cent. per annum on the average daily balance in the treasurer's account, by reason of which there was due to the county $122.17 on that date. The giving of the bond, the insolvency of the bank, and its failure to pay the balance are admitted; otherwise the complaint is traversed by the answer.

The case was tried on an agreed statement of facts reading thus:

"That on December 27, 1920, the county treasurer of Crook county had on deposit with the Crook County Bank subject to his check or order in writing the sum of $10,414.17; that interest was due on this deposit to the extènt of $122.17; that said treasurer also had on deposit in the First National Bank of Prineville the sum of $31,331.30; that included in these two deposits and not segregated, and not yet turned over to the Ochoco irrigation district, were funds of the said irrigation district amounting to $4,114.90, which came into the treasurer's hands regularly through turn-overs from the sheriff's office as the taxes of the said county and district were collected; that these irrigation district funds were carried separately at the depositories during the years 1917 and 1918, but were later included in the general deposit and disbursing funds of the county treasurer; that the plaintiff has made due demand of the defendants in this cause for the first two sums named above; that an analysis of the treasurer's receipts and disbursements by funds taken off his books for the period of January 1, 1920, to December 31, 1920, is hereto attached and made a part of this statement, designated as Schedule A, and a comprehensive analysis of receipts and disbursements by months during the year 1920 is hereto attached and made a part hereof and designated Schedule B, but, it is further stipulated and agreed that the plaintiff objects to the consideration of any funds that may have been deposited in the First National Bank aforesaid, and objects to the consideration of the Ochoco district funds separately from other county levies mingled with the sum the county treasurer had on deposit in the Crook County Bank as aforesaid on December 27, 1920, and objects to all references by Schedules A and B to other funds or moneys than the first two sums mentioned in this stipulation, for the reason that under the pleadings all such consideration of other funds either in the Crook County Bank or in the First National Bank is immaterial, incompetent, and irrelevant, and not an issue, and that, if such evidence is considered by the court and admitted, plaintiff may have an exception to the admission and consideration thereof, as though same had been ruled on in a trial in open court."

The schedules referred to in the statement of facts show that, of the total of $32,365.62 evidenced by the treasurer's ledger balances, all funds except irrigation district moneys amounted to $28,250.72, and that the funds of three different irrigation districts, together with a balance in the escheat fund, aggregated $4,114.90. Of the total $32,365.62 there was deposited in the defendant bank the sum of $10,414.17, and in the First National Bank $20,917.13, or $31,331.30 in all. The difference of $1,034.32 between that sum and $32,365.62 is accounted for by checks not yet entered in the treasurer's books.

The essence of the contention on behalf of the state is that the company is liable, not only for the general funds of the county, but also for the moneys of the irrigation districts which were in the treasurer's hands, but which were mingled with the other funds and not deposited separately in the bank. The company contends that these irrigation district funds are not county money within the meaning of the statute, and hence not within the purview of its bond.

The statute under which the litigation arises and the deposits were made has this title:

"An act to secure to the several counties of the state of Oregon, interest on county money, to provide for depositaries for county funds, and defining the duties of the county treasurer thereto, describing the security to be given and providing for the approval thereof, providing for the payment of funds held in trust by other public officers to the state and providing penalties

...