120 Kan. 400 | Kan. | 1926
The opinion of the court was delivered by
The action is one to have a debt owing by the Home State Bank declared a preferred claim against the assets of the bank in the hands of its receiver. Material parts of the petition summarized alleged that the defendant had in his possession $21,000 belonging to the plaintiff consisting of a special deposit which was designated On the books of the bank as the “GreenleafKirby loan account,” which had been held by the Home State Bank of Greensburg as a trust fund to be paid to the plaintiff upon his executing and delivering a release of a real estate mortgage to secure the payment of a debt of $20,000 and interest thereon amounting to $3,000; that the Home State Bank received from the Kansas City Joint Stock Land Bank $20,000 to be paid over to the plaintiff upon the release of the mortgage; that the mortgage was released and delivered to the Home State Bank, which recorded the release but did not remit to the plaintiff the money that had been
“That all the allegations of plaintiff’s petition are true, and that on the 10th day of October, 1923, the Home State Bank of Greensburg, Kan., was in the possession of a special deposit of money belonging to plaintiff amounting to nineteen thousand two hundred eighty-one dollars and fifty cents (¡$19,-281.50), which came into the hands of the defendant L. E. Waite as receiver of said bank, and that said special deposit was a trust fund in which said bank had no interest as the owner thereof.”
1. The defendant contends that “the court erred in finding that there was any indebtedness existing between the plaintiff and the defendant.” To support this contention, it is argued that the money deposited did not belong to the plaintiff, but was the property of the Kansas City Joint Stock Land Bank. To this the plaintiff responds that “the sole issue raised by the pleadings was whether or not the money received by the Home State Bank was a trust fund, or merely an ordinary account. And of course it follows, and cannot be successfully disputed, that if the bank agreed with Kirby or his agent that the money was to be put in a special account and treated as a trust fund, the bank is bound by that agreement.” There was no substantial dispute concerning the manner in which the $20,000 came into the hands of the bank. The .bank owed some one and by its answer practically admitted that it owed the plaintiff the $20,000. In Anthony v. Herman, 14 Kan. 494, the court said:
“An action can be maintained upon a promise made by a defendant, upon valid consideration, to a third party, for the benefit of the plaintiff, although the plaintiff was not privy to the consideration.”
That rule has been followed in a large number of cases in this court down to and including Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12. This contention of the defendant cannot be sustained.
2. .The defendant contends that “the court erred in finding that the balance shown in the Greenleaf-Kirby account reached the hands of the receiver.” The $20,000 was placed in the defendant bank by the Kansas City Joint Stock Land Bank for the pur
“The Court: Q. When you took charge was there any cash on hand at all? A. There was.
“Q. How much? A. In the neighborhood of $2,000 or such a matter cash in bank as I remember.
“Q. This as cash never came into your hands as receiver? A. As cash?
“Q. As cash? A. Yes, it did.
“Q. I mean this $20,000? A. Oh, no, sir.”
In Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, it was said that:
“The owner of money fraudulently obtained and used in the business of an insolvent bank, by its cashier, is not entitled to repayment by the receiver, in preference to other creditors, except so far as he shows that the assets which reached the hands of the receiver were larger by reason of such transaction than they would otherwise have been; it is not enough to show that the assets of the bank were increased, or that the money was used in reducing its indebtedness.”
Attention is directed to the last statement of that syllabus as follows:
“It is not enough to show that the assets of the bank were increased, or that the money was used in reducing its indebtedness.”
That rule has been followed by this court in Nelson v. Paxton, Receiver, 113 Kan. 394, 214 Pac. 784; Honer v. State Bank, 114 Kan. 123, 216 Pac. 822; Baily v. Paxton, Receiver, 115 Kan. 410,
That part of the judgment declaring the debt to the plaintiff a preferred claim is reversed, and the trial court is directed to enter judgment declaring that the amount due the plaintiff is not a preferred claim. In all other respects the judgment is affirmed.