Wrede v. Exchange Bank of Gibbon

• Decision Date: 05 May 1995
• Docket Number: No. S-93-1018,S-93-1018
• Citation: 531 N.W.2d 523,247 Neb. 907
• Parties: Dale E. WREDE et al., Copersonal Representatives of the Estate of June L. Wrede, Deceased, Appellants and Cross-Appellees, v. EXCHANGE BANK OF GIBBON, Nebraska, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 523

531 N.W.2d 523

247 Neb. 907

Dale E. WREDE et al., Copersonal Representatives of the Estate of June L. Wrede, Deceased, Appellants and Cross-Appellees, v. EXCHANGE BANK OF GIBBON, Nebraska, Appellee and Cross-Appellant.

No. S-93-1018.

Supreme Court of Nebraska.

May 5, 1995.

Syllabus by the Court

1. Parties: Standing: Appeal and Error. Only an aggrieved party can take an appeal.

2. Parties: Standing: Appeal and Error. A nonaggrieved party against whom an appeal is taken may cross-appeal.

3. Parties: Standing: Appeal and Error. One who has been granted that which she or he sought has not been aggrieved.

4. Judgments: Appeal and Error. An appeal lies if the judgment granted possesses qualities and legal consequences different from those sought on alternative grounds.

5. Securities Regulation: Banks and Banking: Words and Phrases. For the purposes of the Securities Act of Nebraska, Neb.Rev.Stat. §§ 8-1101 through 8-1123 (Reissue 1991), a certificate of deposit issued by a regulated banking institution at a fixed rate of interest with virtually no risk of loss is not a security.

6. Consumer Protection: Jurisdiction: Immunity. While under Neb.Rev.Stat. § 59-1617(1) (Reissue 1993) particular conduct is not immunized from the operation of the Consumer Protection Act merely because the actor comes within the jurisdiction of some regulatory body, immunity does arise if the conduct itself is also regulated.

7. Actions: Equity. Assumpsit for money had and received lies whenever one has received money which in equity and good conscience one should pay to another.

8. Actions: Equity. Where a party has received money which in equity and good conscience one should pay to another party, the law implies a promise on the part of the party having the money to pay such money to the party who should have it.

9. Actions. Although founded on equitable principles, an action in assumpsit for money had and received is one at law.

10. Banks and Banking: Statutes: Contracts. Absent proof of fraud, contractual arrangements between a bank and its depositors with respect to the bank's right of setoff may supersede statutory provisions concerning such rights.

11. Actions: Equity. There must be some specific legal principle or situation which equity has established or recognized to bring a case within the scope of assumpsit for money had and received.

12. Actions: Contracts. Where the rights of parties to money or property are governed by a valid contract, an action for money had and received does not lie.

13. Unjust Enrichment: Contracts. One who is free from fault cannot be held to be unjustly enriched merely because one has chosen to exercise a legal or contract right.

14. Actions: Contracts: Rescission. When there are contract terms controlling and there is no duress, an action for money had and received for money paid on a contract cannot be maintained without rescission of the contract.

15. Contracts. An express and an implied contract for the same thing cannot exist at the same time.

16. Contracts. In the absence of fraud, one who signs an instrument without reading it, when one can read and has had the opportunity to do so, cannot avoid the effect of one's signature merely because one was not informed of the contents of the instrument.

Kent A. Schroeder, of Ross, Schroeder, Brauer & Romatzke, Kearney, for appellants.

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellee.

Robert J. Hallstrom, of Brandt, Horan, Hallstrom & Sedlacek, Nebraska City, for amicus curiae Nebraska Bankers Ass'n, Inc.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ., and BUCKLEY, District Judge.

CAPORALE, Justice.

I. STATEMENT OF CASE

The defendant-appellee, Exchange Bank of Gibbon, Nebraska, a banking institution organized and chartered under the laws of Nebraska, offset a claim against a certificate of deposit it had issued to June L. Wrede and others. Wrede thereupon instituted this suit to recover the amount of the setoff, asserting a number of theories of recovery as more particularly set forth in part IV hereof. Notwithstanding that the district court entered a judgment in her favor on one of her theories, Wrede undertook this appeal to the Nebraska Court of Appeals, asserting that the district court erred in ruling against her on her other theories. The Bank of Gibbon responded by cross-appealing, averring that the district court erred in ruling in favor of Wrede at all. We thereafter granted Wrede's petition to bypass the Court of Appeals. Wrede has since died, and the action has been revived in the names of her copersonal representatives, her children, Dale E. Wrede, Marilyn L. Ramsay, and Donna L. Ellis, as plaintiffs-appellants. For the reasons hereinafter set forth, we now reverse the judgment of the district court and remand the matter with the direction that it be dismissed.

II. FACTS

Wrede initially purchased from the Bank of Gibbon certificates of deposit numbered 7463, 11604, and 11712, each having a face value of $18,725.

Later, Wrede's son and his wife bought a grocery store and borrowed $70,000 from the Bank of Gibbon, executing promissory notes totaling $70,000 in its favor. In order to secure the loans, Wrede pledged certificate 11712 as collateral, executing an "Assignment of Certificate of Deposit." The Bank of Gibbon then took possession of the instrument.

Thereafter, Wrede asked that the names of her son and her daughter Marilyn Ramsay be added to all three of the certificates then outstanding. The bank complied by typing "or Dale Wrede and Marilyn Ramsay WROS" after Wrede's name.

During a later renewal period, Wrede decided of her own accord to cash certificate 11604 and purchase two new certificates in its place. She presented herself at the Bank of Gibbon, endorsed and surrendered certificate 11604, received $20,268.54, and with that money purchased and received a new 12-month nonrenewable certificate numbered 12024 in the amount of the original principal, $18,725, which bore a higher interest rate than the replaced certificate, and a 6-month certificate numbered 7651 with the remaining $1,543.54. At Wrede's request, each of the new certificates included the names of her son and her daughter Marilyn Ramsay in the same manner as their names had appeared on the replaced certificate.

However, the new certificates differed from the replaced certificate in that the new instruments contained a provision reading:

RIGHT OF SET-OFF ... Bank may, at any time and for any reason, charge to or set-off against any amount then on deposit in this and any other account, whether or not then due, any and all debts or liabilities then owed to bank by depositor or, in the case of a multiple-party account, by any party to such multiple-party account.

Wrede did not read the new certificates, and the employee of the Bank of Gibbon issuing them did not know of the setoff provision.

The son and his wife thereafter defaulted on their loan, and the Bank of Gibbon set off its claim against a certificate substituted for previously assigned certificate 11712. The Bank of Gibbon later satisfied the balance of $15,384.54 remaining due on the loan by setting off that sum against certificate 12024.

III. SCOPE OF REVIEW

As the analysis which follows will demonstrate, the questions presented turn out to be questions of law, in connection with which this court has an obligation to reach an independent conclusion irrespective of the determination made by the trial court. Rust v. Buckler, 247 Neb. 852, 530 N.W.2d 630 (1995).

IV. ANALYSIS OF WREDE APPEAL

Wrede complained that in one way or another, the district court ruled against her on three of the theories of recovery she had pled, namely, on the claimed violations of the Bank of Gibbon's alleged duty to disclose the offset provisions to her; its alleged duty to comply with the Securities Act of Nebraska, Neb.Rev.Stat. §§ 8-1101 through 8-1123 (Reissue 1991); and its alleged duty to comply with the provisions of the Consumer Protection Act, Neb.Rev.Stat. §§ 59-1601 through 59-1623 (Reissue 1993).

Wrede had also claimed she was entitled to recover on the theory of assumpsit for money had and received. In connection with that theory, the district court found that it could not "in good conscious [sic] find that the contractual provisions of 'right of set-off', should be enforceable" and entered judgment for Wrede in the sum of $15,384.54, plus interest at the certificate rate from about the date of setoff.

The first question which presents itself is whether, having obtained a judgment in her favor, Wrede had standing to appeal and, if so, what she had standing to question. Only an aggrieved party can take an appeal. Atokad Ag. & Racing v. Governors of Knts. of Ak-Sar-Ben, 237 Neb. 317, 466 N.W.2d 73 (1991), overruled in part, Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992); Federal Dep. Ins. Corp. v. Swanson, 231 Neb. 148, 435 N.W.2d 659 (1989), overruled in part, Eccleston, supra. However, a nonaggrieved party against whom an appeal is taken may cross-appeal. Eccleston, supra; Neb.Ct.R. of Prac. 1E (rev. 1992). One who has been granted that which she or he sought has not been aggrieved. Federal Dep. Ins. Corp., supra; Saum v. L.R. Foy Constr. Co., Inc., 190 Neb. 783, 212 N.W.2d 648 (1973). However, an appeal lies if the judgment possesses qualities and legal consequences different from those sought on alternative grounds. See, Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); Aetna Casualty and Surety Company v. Cunningham, 224 F.2d 478 (5th Cir.1955).

Wrede sought and was entitled only to money damages under either of the assumpsit and nondisclosure theories. Thus, the judgment she obtained under the assumpsit theory embodies the same qualities and legal consequences as would a judgment entered under the nondisclosure theory. As a result, as of the time of her appeal, Wrede had not been aggrieved by the...