Whitaker v. Crowder State Bank

• Decision Date: 12 July 1910
• Docket Number: Case Number: 551
• Citation: 1910 OK 257,26 Okla. 786,110 P. 776
• Parties: WHITAKER v. CROWDER STATE BANK.
• Court: Oklahoma Supreme Court

1910 OK 257

110 P. 776

26 Okla. 786

WHITAKER v. CROWDER STATE BANK.

Case Number: 551

Supreme Court of Oklahoma

Decided: July 12, 1910

Syllabus

¶0 1. PLEADING--Construction -- General and Specific Allegations. It is a well- settled rule of pleading that a specific statement of facts will always control a general statement, whether that general statement be or be not regarded as a mere conclusion of law.

2. BANKRUPTCY--Deposits--Set-Off by Bank. Where an insolvent person has money on deposit in a bank subject to check, and also owes the bank, upon such insolvent person's being adjudged bankrupt, the bank is entitled to have the amount of the bankrupt's deposit set off against the sum due from the bankrupt.

3. JUDGMENT--Judgment Notwithstanding Verdict -- Pleadings. Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.

Error from District Court, McIntosh County; Preslie B. Cole, Judge.

Action by Charles Whitaker, as trustee, against the Crowder State Bank. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

S. V. O'Hare and Farrar L. McCain, for plaintiff in error.

F. H. Kellogg, for defendant in error.--Citing: Sec. 5179, Mansf. Dig. Laws Ark.; Sec. 5933, Snyder's Comp. Laws Okla. 1909; Malloy v. Benway, 34 Wash. 315; Boatmen's Bank v. Fritzlen, 135 F. 650; Jones v. Carnes, 17 Okla. 470, 89 P. 652; N.Y. County Nat. Bank v. Massey, 192 U.S. 138, 48 L. Ed. 380.

KANE, J.

¶1 This was a suit commenced by Charles Whitaker, as the duly and legally appointed trustee for the creditors of Rowton Bros., who were adjudged bankrupt on the 27th day of January, 1906, in the United States Court for the Western District of the Indian Territory, sitting in bankruptcy. The grounds for the action were that within four months prior to the time when the said Rowton Bros. were declared bankrupt they had paid into the Crowder State Bank a large amount of money, which money had been obtained by the bank under circumstances that amounted to a preference within the meaning of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]). The cause was tried to a jury, which returned a verdict in favor of the plaintiff. Subsequently the appellee, the defendant below, filed its motion for judgment in its favor, notwithstanding the verdict of the jury, which motion was sustained by the court, whereupon judgment was entered for the defendant below, to reverse which this proceeding in error was commenced.

¶2 Paragraph 2 of the plaintiff's complaint contains the averments with reference to the turning over by Rowton Bros. of the money sued for in this action, the manner in which it was turned over, and the manner it was accepted by the appellee. It reads as follows:

"That the said Rowton Bros., bankrupts, were merchants in Crowder, I. T., and owned a stock of goods in said town and did a general store business, and the buying and selling of cotton; that said Rowton Bros., during all the time they were in business in Crowder did their banking business with the defendant, the State Bank of Crowder, and made all their deposits with the said bank, and that during the four months prior to the filing of the said petition the said bank, the defendant herein, caused all the indebtedness due it from said Rowton Bros. to be paid out of money, checks, and drafts deposited with it by said bankrupts, amounting to the sum of $ 5,000; that the bankrupts deposited the sum of $ 2,167 from the sale in bulk of the stock of goods with the defendants three days prior to their filing of the said petition, which sum was applied by the defendants upon its own indebtedness due it from the said bankrupts; that said money was paid to and received by the defendants for the purpose of giving it a preference, and causing the defendants to receive payment for its debts in full and taking practically all of the estate of said bankrupts so that there was nothing with which to pay the debts of the other creditors; that at the time of such payments the said bankrupts were insolvent, and the defendants had reasonable cause to believe that the receipt of said payments would effect the payment of a greater per cent. of its debts or claims against said bankrupts than would be received by any other creditors."

¶3 This part of the complaint set out a specific statement of facts constituting a transaction had between Rowton Bros., afterward bankrupts, and the appellee, Crowder State Bank. This...