163 Ky. 720 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
The Grish Banking Company is a banking corporation at Central City, and doing a general banking business.
This note was not paid off, but was renewed every four months, until the year 1913. In the meantime Leach-man and his wife, and son, and daughter had removed to the city of Louisville. A short time previous to June, 1913, Samuel Leachman entered into a contract, with C. H. Blandford & Company, real estate agents in Greenville, to procure a sale for him of the house and lot at the sum of $2,000.00, they to have a commission of five per cent, for making the sale. The contract was in writing, and was signed by Samuel Leachman and his wife, Lizzie Leachman. Shortly before the 19th of June, C. H. Blandford & Company notified Samuel Leachman, that they could make a sale of his property for him for $1,700.00. The real estate firm received a telegram from Louisville, signed by Samuel Leachman and his son, H. T. Leachman, and dated 19th-20th day of June, directing them to make the sale at that price, and to deposit the money, less the commission to be paid, in the bank of Gish Banking Company. The telegram, further, notified the real estate firm, that the deeds were in the Gish Banking Company. As soon as the trade was closed, Samuel Leachman and his wife, Lizzie Leachman, executed a deed to the purchaser for the land, and on the 23rd day of June, C. H. Blandford, representing the real estate firm, after paying the taxes due upon the property, and taking out his commission for the sale, executed a check on the 23rd day of June, to the Gish Banking Company for $1,591.55, on “Account of S. and Lizzie Leachman.” In order to prepare this deed, Blandford had gone into the bank and obtained the mortgage, which it held against Leachman, to obtain the boundary of the property. When he deposited this check, D. H. Lam, the cashier of the bank, made out a deposit slip, showing the deposit of $1,211.55, in the bank to the credit of Lizzie Leachman. It seems that the note which Samuel Leach-man owed at the bank amounted to $380, which was subtracted from the amount of the check, which left $1,211.55.
It seems that Woodfull and Samuel Leachman were brothers-in-law, their wives being sisters, and that Woodfull, shortly before these transactions, had moved into the house with Leachman in Louisville, and that they had arranged to buy a dwelling house in Louisville, jointly, and were to pay for it on the 2nd day of July. On the 2nd day of July, Woodfull went to the party with whom they had negotiated the purchase of the house and lot, and proposed to him, that if he would extend the time for closing the deal to the 10th of July, that all the money would be paid. This proposition was refused, uniess $150.00 of the price was paid then, and Woodfull gave a check for that amount on his account in the Southern National Bank. Between that time and' the 8th of July, Woodfull drew all the proceeds of the $200.00 check, the $800.00 check, and the $70.00 check, excepting $11.00 out of the bank, and he and his wife then disappeared out of the country, and do not seem to have been heard of since. All the funds, deposited to Woodfull in the Southern National Bank were the proceeds of the three above-named checks. Leachman’s son, in order to try to carry out the trade to purchase the property in Louisville, telegraphed to the Gish Banking Company to know what sum of money was there to the credit of S. and Lizzie Leachman, and received informa
Thereafter, Sam Leachman and Lizzie Leachman instituted this suit in the Muhlenberg Circuit Court against the Gish Banking Company, to recover of it the sum of $1,211.55, which they alleged had been deposited there to their joint credit, and that the bank refused to pay it. The bank filed an answer, traversing the facts, that the appellees had deposited any money there, or that either of them had made any deposit there, except in the following way: That on the 23rd day of June, 1913, C. IT. Blandford deposited with it the sum of $1,211.55, to the credit of Lizzie Leachman, and that by mistake, the cashier had written, upon the duplicate deposit slip, which it delivered to Blandford, the names, S. and Lizzie Leachman, when in fact, the deposit and account were made in the name of Lizzie Leachman; and that since that time it had paid out upon checks drawn by Lizzie Leachman, and payable to Fred Wood-full, the sums of $70.00, $800.00, and $200.00; that there was left on deposit of said account $141.55, and that Lizzie Leachman had never made any demand for the payment of that sum to her, It further plead, that the checks upon which the money was paid, were written and signed by Lizzie Leachman, and that the appellees had full knowledge of the execution of the checks, and used and received the benefits of the money, and were, therefore, estopped to make any further claim against it for the money. The appellee, by reply, traversed all of the allegations of the answer, and denied that the $800.00 check, or the $200.00 check were, either of them, drawn or signed by Lizzie Leachman, or that they had ’received any of said money, or any benefit of it, or had any knowledge that said checks were written, or drawn, or signed, or that the appellant had paid any of the checks, or that they had received or used any of the money.
Upon the trial of the case, a jury was not demanded, and the circuit court adjudged that the appellees recover the amount, that they had sued for, less the amounts of the $70.00 check, and the $150.00 check given by Woodfull as a payment on the house and lot in Louisville. The trial judge filed an opinion, setting out his conclusions of law separate from his finding of facts, and the appellant having filed grounds for a new trial, its motion was overruled by the court. It excepted to
The proof in this case, without controversy, shows that the entire sum of money deposited by Blandford & Company, was the property of Samuel Leachman. The appellant had actual knowledge that the land for the sale of which the money was obtained, was the property of Samuel Leachman, and that Lizzie Leachman had no interest in it, whatever, except that she had a potential right of dower in the land, with which she parted, when she executed the deed. The appellant paid the note, which Samuel Leachman and Lizzie Leachman executed to it, out of the funds. However, Blandford & Company, being the agent of appellees, and directing the deposit to be made to the use of the appellees, and notifying Samuel Leachman of this fact, and he acquiescing in same, he could not be heard to complain of the money being so deposited; neither could he complain, if the bank should have paid out the money upon checks signed by him and Lizzie Leachman. “Whether the deposit was made to the joint credit of S. and Lizzie Leachman, was an issue of fact determined by the trial court, and its judgment was that the funds were so deposited. The evidence and all the circumstances seem to fully warrant that conclusion. The funds being so deposited, the bank, in the absence of special authority so to do, was not authorized to pay out the funds, except upon a check signed by both Samuel and Lizzie Leachman. The appellant does not claim or pretend that it had any authority or permission from Samuel Leachman to pay out the funds upon checks signed by Lizzie Leachman, alone. It relies for its authority so to do, upon the claim, that Blandford & Company, being the agents of S. and Lizzie Leachman, authorized it to deposit the check to the credit of Lizzie Leachman, alone. This issue of fact was, however, determined against appellant, as above stated.
Funds deposited in a bank to the credit of a partnership, may be lawfully paid out upon checks signed with the partnership name, although it is done by one of the partners. This may be done, because each one of the partners is the agent for- the partnership, and the fund is not jointly, but singly owned. The joint owners of property are not, by reason of that fact alone, agents for each other, for the purpose of a sale or disposition of
Samuel Leachman and Lizzie Leachman were not a partnership. The bank had no authority from Samuel Leachman to pay out the fund deposited to their joint account upon the check of Lizzie Leachman alone. The entire deposit was the property of Samuel Leachman, and he should, therefore, recover the entire sum from the appellant, unless he received the benefit of the funds, although wrongfully paid out by the bank. The proof shows very conclusively, that Samuel Leachman did not receive any benefits from the money paid by appellant on the $200.00 check, nor the $800.00 check, which were signed with the name of Lizzie Leachman, except that Woodfull paid $150.00 of the proceeds of those checks, upon the purchase price of the house, which he and Samuel Leach-man were contemplating buying in Louisville. Samuel Leachman was occupying this house, and when the owner learned the facts in the case, he credited this sum upon his account for rent against Samuel Leachman. Samuel Leachman thus received the benefit of it. Neither did Lizzie Leachman receive any of the benefits of any of these checks, which she is alleged to have signed, in favor of Woodfull. Woodfull seems to have received $1,070.00 of the money, upon the three checks, alleged to have been signed by Lizzie Leachman, and in four or five days, squandered it, and drew it from the bank together, and then fled the country. Lizzie Leachman admitted executing the $70.00 check, and proof conduces to show that Samuel Leachman assented to this, and the court below held that the bank was entitled to credit by it. Samuel Leachman did not except to that finding, and his personal representative is not complaining’ of
The judgment should have been rendered in favor of Samuel Leachman, alone, as the written opinion of the trial judge, adjudges that he is entitled to the recovery, but it seems from a clerical misprison the judgment is entered in favor of the plaintiff, which might be construed to include Lizzie Leachman, but the appellant is in no way prejudiced by this fact, and this might have
The judgment below being in accordance with the views set out in this opinion, it is therefore affirmed.