The Stock Yards State Bank v. The Merchants State Bank

• Decision Date: 06 November 1915
• Docket Number: 19,670
• Citation: 96 Kan. 558,152 P. 769
• Parties: THE STOCK YARDS STATE BANK, Appellant, v. THE MERCHANTS STATE BANK et al., Appellees
• Court: Kansas Supreme Court

152 P. 769

96 Kan. 558

THE STOCK YARDS STATE BANK, Appellant, v. THE MERCHANTS STATE BANK et al., Appellees

No. 19,670

Supreme Court of Kansas

November 6, 1915

Decided July, 1915.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

BANKING--Trial--No Error Appears in Record. Assignment of error relating to the admission and exclusion of evidence, instructions to the jury, and special findings of fact, examined and held not to be well founded.

J. N. Haymaker, A. V. Roberts, W. D. Jochems, Kos Harris, and Vermilion Harris, all of Wichita, for the appellant.

S. A. Buckland, S. B. Amidon, Jean Madalene, Earl Evans, and George Gardner, all of Wichita, for the appellees.

OPINION

BURCH, J.

The action was one to recover a sum of money credited to the plaintiff on the defendant's books, said to have been misappropriated to the payment of a personal obligation of the plaintiff's cashier to the defendant. The defendant prevailed and the plaintiff appeals.

The claim of the plaintiff was that its cashier, Brown, undertook to buy shares of the capital stock of his own bank. To enable him to do this the defendant's president, Dice, authorized him to check on the defendant. The overdraft on the defendant was taken up by Brown's check on his own account with his own bank. To meet this check Brown gave his personal note, with collateral security, to the defendant in the sum of $ 3500 and the money was passed to the credit of the plaintiff, the defendant being a depositary of the plaintiff. Subsequently Brown took up the note with a cashier's check against this deposit. The defendant's claim was that the stock transaction was closed when Brown took up his overdraft on the defendant. Brown then desired to increase his bank's reserve, which was so low that he was required to make reports twice a week to the bank commissioner. To do this he borrowed the $ 3500 for his bank and signed the note in his individual capacity in order that his reports to the bank commissioner might not reveal an application by the bank for the loan. The money was passed to the credit of the plaintiff, and on the receipt of Brown's cashier's check for $ 3500 was applied to the payment of the note. The solution of the question, who borrowed the money represented by Brown's note, Brown or the bank of which he was cashier, was therefore determinative of the controversy. The jury returned the following special findings of fact:

"8. Was the money obtained by Brown from The Merchants State Bank by making to The Merchants State Bank his personal note, money to be used by Brown in his own personal transactions? A. No.

"10. Did not Brown make an application to Dice for an individual loan of $ 3500? A. No.

"12. Was not the note of $ 3500, signed by Brown, an individual note of Brown? A. No, made by Brown for Stock Yards State Bank."

The plaintiff asserts and re-asserts that the findings of the jury are without support in the evidence and are contrary to the evidence. Brown and Dice do not agree respecting the negotiations for the loan. Brown was frequently obliged to exercise his privilege to refuse to answer incriminating questions. He made conflicting statements regarding the purpose for which the $ 3500 loan was obtained, and withdrew some of them. His testimony was unsatisfactory in other respects and there was good ground for the jury to refuse to give it full credence. Dice was abundantly corroborated, and the jury made its choice between the evidence supporting the plaintiff's claim and the evidence supporting the defendant's claim.

Some rulings relating to the admission and exclusion of evidence are complained of. A duplicate deposit slip was excluded, but there was no dispute about the ultimate fact to which the evidence related. Speaking of his authority in the conduct of his bank's affairs Brown was permitted to say, "I take it...