39 P.2d 665 | Kan. | 1935
The opinion.of the court was delivered by
When this action was here on its merits (140 Kan. 20, 34 P. 2d 553) the principal controverted question was whether the trust company had purchased the note known as the Talbot note. That question and those immediately incident to it were then
It now is stated by counsel on both sides that in view of the fact the specific bonds cannot be returned, and that the proceeds of them have been received by the trust company, this court, in lieu of ordering judgment for a return of the bonds, should direct judgment to be entered for plaintiff against the trust company in a definite sum.
The only controversy now between the parties is how to arrive at the sum for which that judgment should be directed. They have directed our attention to the portions of the record which disclose that the bonds which Hamilton bought from the trust company were of the face value of $15,000, being $5,000 Fairfax board of education bonds, $4,000 Roff board of education bonds, and $6,000 Shawnee board of education bonds. Hamilton paid the trust company premiums and accrued interest on these bonds aggregating $532.03, so his actual investment in the bonds was $15,532.03.
The Shawnee board of education bonds, of the face value of $6,000, bore interest at the rate of five per cent. This was a part of a large issue, perhaps $100,000, held by the trust company. The bonds were due May 1, 1927. By that time a question had arisen as to their validity. The trust company urged Hamilton to sue on those bonds in federal court, and because of its interest in other bonds of the same issue offered to have its attorneys prepare the action and conduct the litigation without expense to Hamilton. This was done, except that, perhaps, Hamilton employed an attorney to sit in or assist in the case. At any rate, the action was brought in Hamilton’s name on the $6,000 face value of bonds which the ■company had sold him, with the result that the bonds were held valid and a judgment for $6,150 obtained in the name of Hamilton. After the judgment of the trial court, from which the appeal in this action was taken, that judgment came into the hands of the trust company under circumstances which need not be detailed here, but as a part of the result of the judgment appealed from, and the trust company, on July 8, 1933, collected the full amount of the judgment, $6,150, but without interest since the date of the judgment. In determining the amount of the money judgment to be directed in this case it is our judgment that the trust company should be charged with this $6,150 as of the date it collected that money, with straight interest at six per cent per annum since that time. Perhaps this is more favorable than it should be, with respect to the Shawnee bonds, but plaintiff clearly is entitled to that much, and it is not clear he is entitled to more.
As previously determined in this court, on a motion for rehearing in this action (140 Kan. 282, 36 P. 2d 529), the trust company is entitled to a credit of $1,500 it paid Hamilton July 27, 1927, and $450, August 26, 1927. In determining the amount of the money
The computations, therefore, as above determined, are as follows, to January 15,1935: The trust company is charged with the amount of' the Fairfax and Roff board of education bonds, $9,000, with interest thereon at six per cent per annum since July 1, 1927, $4,072.50; also with the amount it collected, on the Shawnee board of education bonds, $6,150, with interest thereon at six per cent since the date of collection, July 8, 1933, $560.66; making a total charge of $19,783.16. The trust company is credited with the $1,500 it paid Hamilton, July 27, 1927, with six per cent interest thereon since that date, $672; also credited with $450 paid Hamilton, August 26, 1927, with interest at six per cent since that date, $199.42; making a total credit of $2,821.42. This leaves a balance due plaintiff from the trust company, as of the date of January 15, 1935, of $16,961.74.
In view of these conclusions it is now, at the same term of this court in which the former mandate was issued, ordered and adjudged that the former mandate of this court in this cause be and the same is hereby recalled, and the trial court is hereby directed to set aside its order spreading that mandate of record, and to set aside any judgment rendered thereon, and to dismiss any proceedings pending by reason thereof, and to enter judgment for plaintiff and against the defendant trust company for the sum of $16,961.74, as of the date of January 15, 1935, with interest on that sum at the rate of six per cent per annum from that date until the judgment is rendered, if it is not rendered on that date; also to provide in the judgment rendered that the amount of the judgment shall bear interest from the date of judgment until paid at the rate of six per cent per annum; and the trial court also shall render judgment in favor of plaintiff and against the said defendant for the cost of this action, including the costs in this court.