166 Wis. 347 | Wis. | 1917
Eor some years prior to March 20, 1911, Carroll Lucas had kept an individual deposit account with the Bank of Menomonie, which on the date mentioned amounted to $6.80. ITe that day presented to the cashier of the bank a check for deposit to his individual account for $1,250 payable to Carroll Lucas, Guardian, and indorsed “Carroll Lucas, Guardian.” The cashier took note of the fact that Carroll Lucas, Guardian, was the payee, and of the form of the in-dorsement, and credited the amount of the check, afterwards collected by the bank, to Lucas’ individual account. The check in fact belonged to Lucas’ ward, the plaintiff herein. Lucas was indebted to the bank in the sum of $700 on a note secured by collateral of equal amount and value. He drew a check for $850 payable to the bank and received his note and collateral and $150 in cash. The check for $850 was charged to his individual account. These transactions all took place with the cashier of the bank on the same day and immediately after the deposit of the $1,250 check. It was claimed by the appellant in his affidavit for bringing in the defendant bank that if he was liable the bank would be
“A defendant who shows by affidavit that if he be held liable in the action he will have a right of action against a third person not a party to the action for the amount of the recovery against him, may, upon due notice to such person and to the opposing party, apply to the court for an order making such third person a party defendant in order that the rights of all the parties may be finally settled in one action, and the court may in its discretion make such order.”
No argument is needed to show the application of the section to the facts in this case. The court properly granted the order making the bank a party defendant; for a surety on a guardian’s bond, if held liable thereon, is pro tanto sub-rogated to the rights of his ward and may follow the property of the ward’s estate into whosesoever hands it has wrongfully come. Boyle v. Northwestern Nat. Bank, 125 Wis. 498, 103 N. W. 1123, 104 N. W. 917; Emigh v. Earling, 134 Wis. 565, 115 N. W. 128; United States F. & G. Co. v. Adoue, 104 Tex. 379, 137 S. W. 648, 138 S. W. 383, 37 L. R. A. n. s. 409 and note; 12 Ruling Case Law, 1172.
The trial court found that the bank acted in good faith and lawfully received payment of Lucas’ debt to it from the proceeds of the check. That the cashier believed the bank had the right to receive payment from the trust fund and was guilty of no intentional fraud may be admitted so far as this particular transaction is concerned. But that does not reach the real question at issue, namely, Ought not the bank, from the evidence before it, to be held as a matter of law to have had notice of the trust character of the fund and that it could not lawfully receive payment of Lucas’ debt out of i.t ? The word “guardian” is a well understood word of common speech and implies to the average lay mind that a fund held
Some courts have* gone so far as to hold that if a bank permits trust funds to be deposited to the individual credit of
Some claim is made that when Lucas paid the bank the $700 he bought from it for plaintiff’s estate the collateral deposited to secure his note, and therefore there was no conversion of the trust fund. The statement of the claim is a sufficient negation thereof. So, too, the argument that plaintiff was not obliged to look to the proceeds of this check because her estate had been converted into this fund in contravention of the duties of a former guardian, is not well founded. Even if she was not obliged to follow it she could elect to do so (Martin v. Davis, 80 Wis. 376, 50 N. W. 171), and she has done so. The defendant bank is in no position to challenge such right of election. The banlc received $700 from Lucas as guardian on March 20, 1911. The default of Lucas was $719.97 with interest from January 1, 1912, at six per cent. Interest on $700 from March 20, 1911, to January 1, 1912, at six per cent, would amount to more than $719.97. Plaintiff is therefore entitled to judgment against the Bank of Menomonie in the full amount of the loss to her estate, namely, $719.97 with interest thereon from January 1, 1912, at six per cent.
By the Court. — Judgment reversed as to the defendant the Bank of Menomonie only, and the cause remanded with directions to enter judgment in favor of plaintiff against said defendant bank in the sum of $719.97 with interest thereon