Trails Motors, Inc. v. First Nat. Bank of Laramie, 2724

CourtUnited States State Supreme Court of Wyoming
Citation301 P.2d 775,76 Wyo. 152
Docket NumberNo. 2724,2724
PartiesTRAILS MOTORS, Incorporated, doing business as Plains Auto Body Shop, Plaintiff and Respondent, v. The FIRST NATIONAL BANK OF LARAMIE and General Credit Corporation, Defendants and Appellants.
Decision Date18 September 1956

J. R. Sullivan and G. R. McConnell, Laramie, for appellants.

Bernard E. Cole, Thomas J. Carroll, A. Joseph Williams, Cheyenne, for respondent.

McAVOY, District Judge.

By the direct appeal method, the appellants challenge a judgment rendered against them. Trial was to the court, a jury having been waived. On June 4, 1955, the trial court, stating its findings generally for the plaintiff and against the defendants, adjudged that plaintiff have judgment against defendants for the sum of $2,256.78, with costs. Noting their exceptions, appellants have lodged appeal in this court.

In this opinion, First National Bank of Laramie will be referred to as the bank, General Credit Corporation as the credit company, and Plains Auto Body Shop as the body shop; except occasionally for clarity, we shall use their accurate names. We shall also refer to the parties as they were aligned in the court below.

Defendants jointly assigned and duly filed specifications of error asserting as grounds therefor that:

1. The judgment is contrary to law.

2. The judgment is contrary to the evidence.

3. The trial court erred in failing to consider the motion of defendants filed in said cause, asking that 'they be permitted to amend their petition to plead estoppel * * * for the reason that said failure to consider said motion by the court is contrary to law.'

Preliminary to a recitation of the pleadings of the parties to this suit, some materials of our code of civil procedure warrant attention. Issues are defined and classified by our civil code, § 3-2102, W.C.S.1945, as follows:

'Issues arise on the pleadings where a fact, or conclusion of law, is maintained by one party and controverted by the other. They are of two kinds:

'1. Of law;

'2. Of fact.'

The plaintiff's amended petition averred (1) the corporate entity of the plaintiff; (2) its ownership and operation of Plains Auto Body Shop in Cheyenne; (3) corporate entity of the bank, its domestication and authority to transact business in Wyoming; (4) the corporate entity of General Credit Corporation under Colorado law and domestication in Wyoming.

Allegation numbered five of the petition alleged that the credit company 'accepted, endorsed and cashed checks' payable, 'individually or jointly' to 'Plains Auto Body Shop' following their endorsement by one Wes Curl; that such checks were then cashed by the defendant bank.

In the next and final paragraph the plaintiff incorporates, as a part of its petition, photostatic copies of five drafts. Two are payable to 'Plains Auto Body' in the amounts of $276.39 and $448.76, respectively; one payable to 'Plains Auto Body Company' in the amount of $368.75; two payable to 'Plains Auto Body Shop' in the amounts of $397.97 and $764.91, respectively. Each of the drafts is endorsed by pen, in ink and in longhand, in words substantially as follows:

'Plains Auto Body

'By Wes Curl.'

The further endorsement appears on each of the drafts:

'For Deposit Only

'First National Bank

'General Credit Corporation.'

All drafts were drawn and paid in the year 1949; three are dated in April, one in June, and one in July of that year.

Recurring to the subject averment, plaintiff in substance alleges that: (a) In 1949 plaintiff had Wes Curl in its employ; (b) Curl was in no way serving as agent of plaintiff and had no authority to 'cash, endorse, discount, negotiate or in any other manner transact the financial affairs of the plaintiff, all to the knowledge of the several defendants'; (c) Curl 'endorsed and cashed checks, payable to plaintiff, with the defendants who accepted the said checks and made payment thereon upon the said endorsements'; (d) Curl converted moneys to his own use without the knowledge or permission of the plaintiff. Plaintiff prayed for judgment in the amount of $2,256.78. Separate answers, each containing separate defenses, were duly and respectively filed by the defendants.

The salient features of these answers call for brief mention. The credit company admitted the whole of allegation number five of the petition, except the cashing of the drafts by the bank which it denied. The credit company admitted that (a) 'Wes Curl endorsed and cashed checks payable to the plaintiff, with the defendants who accepted said checks and made payments thereon upon said endorsements'; (b) 'copies of said checks upon which payment was made are attached and made as exhibits to plaintiff's amended petition.' It consequently denied the following allegations:

1. That during the year 1949, the plaintiff had in its employ said Wes Curl.

2. 'The said Wes Curl was in no way serving as the agent of the plaintiff, and had no authority whatsoever to cash, endorse, discount, negotiate or in any other manner transact the financial affairs of the plaintiff, all to the knowledge of the several defendants and each of them, individually.'

3. That said Wes Curl converted the said moneys to his own use without the knowledge or permission of plaintiff.

The credit corporation by way of separate defense denied that the plaintiff had been in any manner either damaged in the sum of $2,256.78 or any other sum and averred that plaintiff received full payment, satisfaction and discharge of said debt.

The bank, after admitting all allegations of paragraph numbered five of the petition, especially alleging the passing of credit to the endorser, the credit company, upon its account with the bank, and the corporate entity of plaintiff and the bank, denies the plaintiff's ownership and operation of the body shop, the incorporation of the credit company. It denies each allegation of material fact in such paragraph and interposes two separate defenses.

The first defense that (a) plaintiff was obligee, Curl was principal and Maryland Casualty Company of Baltimore, Maryland, was obligor under a certain numbered fidelity bond numbered and dated November 17, 1948, (b) plaintiff has received $2,500 from the obligor for the loss by the obligee by reason of Curl's conduct, (c) in virtue of which plaintiff has been paid to the full extent of the damages alleged to have been sustained.

The second defense that (a) plaintiff assigned to the named obligor 'any and all right, title and interest in and to any claim or claims the plaintiff may have arising out of the alleged conduct of Wes Curl,' (b) by reason of the assignment the plaintiff is not the real party in interest. Replies of general denial were made respectively to these separate answers and separate defenses.

The plaintiff grounded its suit on the theory of its ownership and operation of the body shop and Wes Curl's lack of authority to engage in the financial affairs of the plaintiff. The credit company denied that Wes Curl was plaintiff's employee or that he was, as the plaintiff alleged, 'in no way serving as the agent of the plaintiff and had no authority to cash, endorse, discount, negotiate or transact the financial affairs of the plaintiff.' The bank denied the employment and agency of Wes Curl by the plaintiff or that he had no authority to cash checks or transact the financial affairs of the plaintiff and denied his conversion of the moneys through the cashing of the drafts. Before coming to close quarters with the case, we venture upon a few other salient facts.

At the outset of the trial, April 22, 1955, a stipulation was executed by the parties to the action which, omitting the title and the parties signatory, is as follows:

'The parties hereto, acting by and through their respective attorneys, agree as follows:

'1. That Exhibits 'A', 'B', 'C', 'D', and 'E' attached to the Amended Petition are true copies of five checks payable to either 'Plains Auto Body', or 'Plains Auto Body Shop', or 'Plains Auto Body Company'; that each of said checks was endorsed 'Plains Auto Body, by Wes Curl'; that said Wes Curl presented said checks to defendant General Credit Corporation; that said General Credit Corporation paid to said Wes Curl the amounts of money designated on the face of each of said checks and deposited said checks to the account of the corporation in defendant First National Bank, of Laramie, Wyoming; and that said defendant bank credited the account of the defendant General Credit Corporation in the amount shown on the face of each of said checks, placed each of said checks in line for payment, and collected either directly or indirectly from the depository banks named on said checks the amount of money shown on the face of each of said checks.

'2. That said Wes Curl was employed by the plaintiff; that nothing contained herein is intended by the parties to be indicative of the scope of employment of said Wes Curl by the plaintiff; and that the defendants on the trial of the matter herein shall have the full benefit of their denials and allegations concerning the employment of said Wes Curl by the plaintiff as those denials and allegations are set forth in the answers filed herein.

'3. That said exhibits may be received into evidence on trial of said matter as true copies of said checks for such probative value as they may be to the Court.'

The trial was concluded April 22, 1955, and, as mentioned before, the court rendered judgment on June 4, 1955. On May 9, 1955, defendants filed their joint motion in material part as follows:

'Comes now the above named defendants, The First National Bank of Laramie, Wyoming and General Credit Corporation, and most respectfully move the Court for its Order to permit the defendants to plead estoppel as a further defense to the matters and things set forth in the plaintiff's petition.'

The record is silent as to what action was taken concerning the motion. We conclude that the motion was not...

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6 cases
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    ...Stucco Co. of Washington v. Marine Nat. Bank, 148 Wash. 341, 268 P. 891, 67 A.L.R. 1531 (1928); Trails Motor v. First National Bank, 76 Wyo. 152, 170-172, 301 P.2d 775, 782-783 (1956). The same principle is stated in ORS 71.023:'Where a signature is forged, or made without the authority of ......
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    ...has a duty to exercise reasonable diligence to determine the scope of an agent's authority. Trails Motors, Inc. v. First Nat'l Bank of Laramie, 76 Wyo. 152, 175, 301 P.2d 775, 784 (1956). Having examined the summary judgment evidence in a light most favorable to the Lavoies, we find that no......
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