Stone v. The Jarbalo State Bank

• Decision Date: 10 July 1920
• Docket Number: 22,733
• Citation: 107 Kan. 332,190 P. 1094
• Parties: HARRY STONE and LOTTIE STONE, Appellees, v. THE JARBALO STATE BANK, Appellant
• Court: Kansas Supreme Court

190 P. 1094

107 Kan. 332

HARRY STONE and LOTTIE STONE, Appellees, v. THE JARBALO STATE BANK, Appellant

No. 22,733

Supreme Court of Kansas

July 10, 1920

Decided July, 1920.

Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Demand for Inspection of Deed--Instrument Sufficiently Identified in Demand. A notice given under section 366 of the code of civil procedure is sufficient although the notice may be defective, if it describes the instrument desired with sufficient particularity to enable the party notified to identify it.

2. DEED--In Escrow--Wrongfully Delivered by Bank--Bank Liable for Damages. If a bank, after receiving a deed from the grantors therein named with instructions to deliver it to the grantee on the payment of a certain sum of money, delivers the deed on the payment of a smaller sum, the bank is responsible for the damages sustained by the grantors by reason of the delivery of the deed in violation of the instructions.

3. SAME--Letter of Instructions Received by Bank. There was evidence which tended to show that the bank in the present case received the letter of instructions concerning the delivery of the deed.

4. DEPOSITION--Returned to Officer for Proper Certification. Depositions, by leave of court, may be withdrawn from the files and be returned to the officer before whom they were taken for proper certification.

5. CONTRACT--Sale of Land--Deed in Escrow--Deed Wrongfully Delivered by Bank--Liability for Damages. The grantors in a deed sent it with instructions to a bank to deliver the deed to the grantee on the payment of a certain amount of money. The bank accepted an amount less than that named, delivered the deed, remitted by draft the amount received, and stated that the amount remitted was in full for the purchase price. The grantors immediately notified the bank that they would not accept that amount in full for the purchase price. The grantee in the deed immediately conveyed the land to third parties who mortgaged it. Afterward the grantors cashed the draft. Held, that the grantors can recover from the bank the damages sustained by them by reason of the delivery of the deed for an amount less than that named in the instructions.

John T. O'Keefe, of Leavenworth, for the appellant.

W. W. Hooper, of Leavenworth, for the appellees.

OPINION

MARSHALL, J.:

The plaintiffs recovered a judgment for $ 1,640.40, and the defendant appeals. The plaintiffs entered into a written contract, dated January 24, 1917, with T. H. Moore, to convey to the latter certain real property owned by the plaintiffs in Leavenworth county, for $ 4,256.25, of which $ 100 was paid in cash, and $ 4,156.25 was to be paid March 1, 1917. The contract was in writing and was in duplicate. Both copies were prepared by H. E. Cockrell, and were by him sent to the plaintiffs who resided in Minnesota. They signed both copies and returned one of them to Cockrell. The contract provided that the contract and deed, when signed, should be deposited in escrow in the Jarbalo State Bank, a corporation. The contract was divided into articles, the first one of which described the land and stated that it was free and clear of all encumbrance except $ 1,425 and interest. The second article of the duplicate retained by the plaintiffs, a copy of which was attached to the plaintiffs' petition, contained the following words:

"First parties agree to sell to second party the above described real estate for the sum of forty-two hundred fifty-six--25-100 dollars ($ 4,256.25), and to accept pay for same on the following terms: $ 100.00 in cash this date deposited in The Jarbalo State Bank to be held in trust until all papers are drawn and signed (contract and deed), and deposited in said bank in escrow and the balance $ 4,156.25, March 1, 1917, and to convey said real estate as described in article I of this instrument, subject to the incumbrance therein named."

The answer, which was verified, denied the allegations of the petition, and alleged that if the words, "subject to the incumbrance therein named," appeared in the copy of the contract held by the plaintiffs unerased, they were left there by ignorance and mistake on the part of those signing the contract. The answer also set out all or a large part of the correspondence between the plaintiffs and H. E. Cockrell, the agent who negotiated the contract for the sale of the property. The verified reply denied "each, all and every allegation in said answer contained."

March 1, 1917, W. T. Francis, acting for the plaintiffs, mailed a letter to F. B. Morgan, as president of the Jarbalo State Bank, and inclosed the deed from the plaintiffs to T. H. Moore. That letter was as follows:

"Herewith please find deed from Harry and Lottie Stone to T. H. Moore for farm belonging to Harry Stone in Leavenworth county, Kansas, for delivery to T. H. Moore upon payment to you, for delivery to me the sum of $ 4,256.25; as per contract entered into on the 24th day of January, 1917, between Harry Stone and wife and said T. H. Moore.

"The contract refers to a mortgage of $ 1,425 now outstanding against this land and also provided that the parties of the second part will pay to you the said sum of $ 4,256.25, subject to the incumbrance of the mortgage above named.

"On payment to you of said sum of $ 4,256.25 you may deliver the executed deed to Mr. Moore and remit the $ 4,256.25 to me."

Morgan had been president of the defendant bank, but was not holding that position at the time the letter was written. He received the letter, and by mail sent it and the deed to T. H. Moore, who was a bookkeeper in the bank. H. E. Cockrell was the cashier. Moore received the deed and reported that fact to Cockrell. The next day Cockrell sent to the plaintiffs a draft for $ 2,615.85, and in the letter transmitting the draft, stated that the draft was in full for the land. The plaintiffs immediately responded that they would not accept the amount remitted as the balance due on the purchase price. The dispute that arose in this manner culminated in the present action.

1. One of the questions argued by the defendant is that the court committed error in excluding from evidence the copy of the contract produced by it on the trial. From the copy produced by the defendant the words, "subject to the incumbrance therein named," had been erased. On March 3, 1919, but before the trial, the plaintiffs notified the defendant and its attorney of record that they requested an inspection and copy of certain letters. That notice contained the following:

"You are hereby further notified that the undersigned, as attorney for the plaintiff desires an inspection of the agreement between Harry Stone and Lottie Stone, dated January 24th, 1917, for the sale of the real estate in controversy.

"This demand is made under section 7270 of the code of civil procedure, of the statutes of the state of Kansas for the year, 1915."

A dispute has arisen concerning the contents of that notice. The plaintiffs contend that the notice named the contract between Harry Stone and Lottie Stone and T. H. Moore, while the defendant contends that the notice was as herein quoted. For the purpose of this discussion we have accepted the contention of the defendant as being true. The defendant did not produce the contract for inspection previous to the time of trial, when the defendant offered it in evidence. The plaintiffs objected to its introduction for the reason that the notice had not been complied with. That objection was sustained. The defendant argues that under the notice given it was not compelled to produce the contract for inspection. The copy of the contract offered by the bank was not set out in the pleadings. The statute, section 366 of the code of civil procedure, under which the notice purports to have been given, reads:

"Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused. This section shall not apply to...