250 P. 1018 | Okla. | 1926
Parties will be referred to as they appeared in the trial court, inverse to their order here. In her suit against defendant, plaintiff, Anderson, alleged that the Greenfield State Bank was the duly constituted agent of plaintiff for loaning $1,100 of plaintiff's money then in possession of said bank; that plaintiff drew a check and deposited same to the credit of Duncan, who thus received and used the money; that on December 1, 1923, plaintiff demanded said sum from defendant, and that defendant has wholly failed to pay same; that no express agreement otherwise was made between the bank, as agent of plaintiff and the defendant relative to the repayment or interest; that more than a reasonable time had elapsed, and prayed judgment in assumpsit as for money had and received. Defendant answered by general denial, denying such agency under oath. Defendant further averred:
"On March 1, 1923, plaintiff deposited the sum of $1,100 in said bank, and received and accepted and retained from said bank a written receipt and memorandum of agreement duly executed and delivered on behalf of said bank by Robt. N. Thomas, the duly appointed, authorized and acting president and manager of said bank, said written receipt and memorandum of agreement being in words and figures as follows, to wit:
"The Greenfield State Bank, Greenfield, Okla., March 1, 1923.
"We have this day received of Velma Anderson the sum of $1,100, for which we agree to allow her interest at the rate of 10 per cent. from this date until such time as it is returned to her. We agree to loan the above funds to reliable parties at the above rate of interest and to look after the collection of both the principal and interest.
"Greenfield State Bank, "By Robt. N. Thomas, Pres."
Defendant further answered that said deposit was a general one; that the relation of debtor and creditor arose between plaintiff and the bank; that Mr. Thomas, the president of the bank, died about December 21, 1923, and the State Bank Commissioner took over said bank as insolvent and proceeded to wind up its affairs; that about January 1, 1924, defendant first learned that the books of the bank showed that on April 14, 1923, defendant's account, as shown by the books of the bank, had been credited with said deposit, "which is the item on which plaintiff bases her action herein: that said credit was so entered without the knowledge or consent of defendant and knowledge thereof was withheld and concealed from defendant by such officer of such bank and said entry of credit was by said bank omitted from subsequent statements of defendant's *195 account issued to him, and said officer of said bank had no right or authority to enter such credit and the defendant never accepted the same, nor knowingly used the same"; that if defendant became liable or indebted to any one, it was to the bank and not to the plaintiff, and if any one owed plaintiff, it was the bank; that the Bank Commissioner claimed said sum of $1,100, and demanded payment thereof from defendant, and threatened to sue defendant therefor, whereupon defendant acknowledged such claim to the bank and settled and paid same. Other matters are pleaded which are not material here. The court sustained demurrer to this answer, and because defendant elected to stand thereon, rendered judgment for plaintiff, from which defendant appeals.
1. We deem it proper to determine first the relation that arose between plaintiff and the bank because of defendant's contention of primary liability of the bank to plaintiff. Under the answer, the delivery of the $1,100 by the plaintiff to the bank was a special and not a general deposit. A delivery of property, securities, or even money, to the bank, for the purpose of having the same safely kept and the identical thing deposited returned to the depositor, is a special deposit. 7 C. J. 630. A bank deposit without any limitations, restrictions, or qualifications, such as are usually made in the due course of business, subject to be drawn out by the depositor on demand, is a general deposit and creates the legal relation of debtor and creditor between the bank and the depositor. Dempsey O. G. Co. v. Citizens' National Bank,
2. As shown above, defendant substantially admits that plaintiff deposited said sum under said written agreement with the bank, which is tantamount to an admission that she owned the money at that time, the defense being that, by reason of said agreement, and other matters pleaded, she is not entitled to recover from defendant; and that the fund was delivered to the credit of defendant through the agency of the bank, defendant referring to the fund as the item on which plaintiff bases her action herein. Moreover, by pleading such settlement with the Bank Commissioner, defendant also tacitly admits that he received this fund. In 41 C. J. 47, the general rule as to money had and received, is:
"It is immaterial how the money may have come into defendant's hands, and the fact that it was received from a third person will not affect his liability, if in equity and good conscience he is not entitled to hold it against the true owner."
In Brooks et al. v. Hinton State Bank,
3. Nor is there any merit in the contention that there was no privity of contract between plaintiff and defendant. In Thurlwell et al. v. Rabbit et al., supra, it is held that privity of contract is not necessary to support an action for money had and received, and the only privity required is that arising from a promise implied by law, that the defendant having money in his hands that rightfully belongs to plaintiff will pay it over to him. This rule is consonant with Brooks v. Hinton State Bank, supra, and other holdings in this jurisdiction.
Plaintiff asserts that she had the right to trace this fund as a trust fund and could recover it when found in the hands of defendant. We do not deem it necessary to pitch this decision upon such ground. It is well settled that the Bank Commissioner took the bank in the condition in which he found it. He found this agency agreement by which the bank had delivered said sum to defendant by extending such credit upon the books. Thereby the Commissioner found that plaintiff was not a creditor of the bank as a depositor of said sum. Under the view we take of the liability of defendant shown by his answer, in assumpsit as for money had and received, his settlement or payment of said sum to the Bank Commissioner would constitute no defense, because, under his admissions, after knowledge of plaintiff's claim, he settled with the wrong party, and a party not before the court in the instant action. Defendant pleads himself out of court.
Let the judgment be affirmed.
By the Court: It is so ordered.