Wilde v. Amoretti

• Decision Date: 19 June 1934
• Docket Number: 1852
• Citation: 47 Wyo. 193,33 P.2d 399
• Parties: A. E. WILDE, STATE EXAMINER v. ELOISE AMORETTI
• Court: Wyoming Supreme Court

33 P.2d 399

47 Wyo. 193

A. E. WILDE, STATE EXAMINER v. ELOISE AMORETTI

No. 1852

Supreme Court of Wyoming

June 19, 1934

APPEAL from the District Court, Fremont County, EDGAR H. FOURT Judge.

Action by A. E. Wilde as State Examiner in charge of the liquidation of the banking firm of Amoretti, Welty, Helmer and Company, a partnership, against Eloise Amoretti. From a judgment for defendant, plaintiff appeals.

Affirmed.

The cause was submitted for plaintiff and appellant on the brief of W. E. Hardin, of Lander.

The answer admitted that Amoretti, Welty, Helmer and Company was a partnership, engaged in the banking business under the laws of the State of Wyoming. Section 10-110, R. S. 1931. The term "item" means any check, note or instrument providing for the payment of money. Section 10-701, R. S 1931. The State Examiner was authorized to take charge of the bank, Section 10-512, R. S. 1931, which seems to have gone into voluntary liquidation. Section 10-527, R. S.; 74-1702 R. S .1931. The note in suit was a commercial note and not an accommodation note. Section 74-201, R. S. 1931; Hamilton v. Diefenderfer, 21 Wyo. 266. The evidence showed that it was not an accommodation note. Walsh v. Hennessey (Man.) 3 Dom. L. R. 823, 21 West L. R. 609. A married woman may bind her individual property for the payment of another's debt. Holmes v. Hull, 70 N.W. 242; King v. Hansing, 93 N.W. 308; Just v. State, 94 N.W. 201.

The cause was submitted for the defendant and respondent on the brief of G. J. Christie, of Lander.

The firm of Amoretti, Welty, Helmer and Company was a partnership and could not lawfully engage in the banking business. An insolvent partnership is not under the jurisdiction of the State Examiner for purposes of liquidation. "Banks" are defined by Section 10-110, R. S. 1931. This action was instituted in November, 1928. The law in effect at that time defined banks, Laws 1925, Chapter 157, page 208. It repealed Chapter 328, C. S., relating to partnership banks. See Section 120. The section defining state banks was in effect upon the commencement of this action. It was thereafter amended by Laws 1929 and now appears as Section 10-105, R. S. Under the law of partnerships, firms do not become insolvent until the partners them-selves are insolvent. Section 81-307, R. S. 1931. The State Examiner therefore acted without authority. The note sued on was made without consideration. See: Section 74-201, 203, 205, 206, R. S. 1931. Partnership banks having been abolished in this state by the Laws of 1925, Chapter 157, the State Examiner has no statutory authority to liquidate a partnership bank. His entire authority in respect thereto is statutory. The consideration presumptively established by executing a negotiable instrument is only prima facie. Section 74-201, R. S. 1931. The absence or failure of consideration is a matter of defense. Section 74-205, R. S. 1931. The judgment of the trial court should be affirmed.

RINER, Justice. KIMBALL, Ch. J. and BLUME, J., concur.

OPINION

RINER, Justice.

The action below was brought in the District Court of Fremont County November 17, 1928, by the then State Examiner, A. L. Putnam. Before the case was tried January 7, 1933, William Reeves, having subsequently succeeded to the duties of that office, was substituted as plaintiff. Thereafter, the personnel having again changed in the office aforesaid, A. E. Wilde, the present plaintiff and appellant, came into the case by court order of substitution duly made on June 5, 1933. The judgment in question is here for review by direct appeal.

The petition in the district court was filed to recover on a promissory note signed by Eloise Amoretti, defendant and respondent, and, shortly summarized, alleged that Amoretti, Welty, Helmer and Company was a partnership, and on and prior to November 25, 1927, was engaged under that name as a firm in the banking business under the state law at Dubois, Fremont County, Wyoming; that on that date the firm became insolvent and the State Examiner took possession of its assets, and as such official, was entitled to receive and collect all debts and claims belonging to it. These allegations were followed by the usual averments descriptive of the note in suit which is one dated May 12, 1926, for the principal sum of $ 1000, due six months after date, payable at the firm's office in Dubois, with interest at 10% per annum, and 10% attorneys' fees in case of suit. A copy of the note was attached to and made a part of the pleading. It is then alleged that, though matured, the note has not been paid, except that there was credited thereon on December 9, 1926, the sum of $ 50, and on June 7, 1927, a like sum, both amounts being applied on interest, and on November 25, 1927, the sum of $ 8.50 was credited on the principal of the note. Judgment was asked for $ 1,243.42, including principal, interest, and attorneys' fees.

The answer of the defendant, so far as material to be considered here, admitted the existence of the partnership aforesaid and its conduct of a banking business, as the petition alleged, but denied both that the firm was insolvent and that the State Examiner had authority or right, as such official, to take control of the business or to bring the action. The remaining allegations of the petition were also put in issue. The defendant further answering, alleged that at the request of the firm some time in 1915, she executed to it a promissory note for $ 1000 which was renewed from time to time, also, at the payee's request; that she never paid anything on said note, never received any consideration therefor, and "that same was executed and delivered solely for the accommodation of said bank." The plaintiff's reply was a general denial, except as to the answer's admissions.

The trial of the cause was to the court and it was disposed of by a general finding in favor of the defendant and against the plaintiff upon which judgment was entered that plaintiff take nothing by his action and that defendant recover her costs.

It is contended on behalf of the plaintiff that the promissory note in question is not an accommodation note and that, accordingly, the court erred in finding and giving judgment for the defendant. This necessarily raises a question of fact.

The only evidence upon the point adduced at the trial is as follows: Plaintiff produced the note which contains the words "for value received" and, after proving its execution by the defendant, offered it and it was received in evidence. After establishing its non-payment, plaintiff rested its case. For the defense, the defendant testified in her own behalf that she never received any consideration for the note; that her husband, Eugene Amoretti, one of the members of the firm, asked her if she would sign a note, and that she said she would if it was necessary to accommodate the bank, and that she signed the note and gave it to Mr. Helmer, and that the bank kept possession of it. On cross examination, she testified that she never paid anything on the note. To the question "And any endorsements of payments on this note that may appear, were made without your authorization and without payment on your part?" she again responded, "I did not." Eugene Amoretti, called as a witness for the defendant, testified that he asked his wife if she would give the bank an accommodation note. Requested by counsel to state the circumstances of the...