94 Kan. 761 | Kan. | 1915
The opinion of the court was delivered by
Two actions aye involved, but as they have been heard together both here and in the district court, and as they are in all respects similar, only one of them will be discussed.
Thomas Lynn sued in Haskell county to foreclose a reál-estate mortgage given by B. M. McCue. The plaintiff obtained a judgment, which is not challenged. The Commonwealth Trust Company, a Missouri corporation having offices in St. Louis, which will hereinafter be referred to as the trust company, asserted a claim under a second mortgage, and the vital controversy is between that corporation on the one hand, and McCue and the receiver of the Kansas Construction & Irrigation Company (which will be called the construction • company) on the other. John Rice and the New England National Bank are judgment creditors of McCue, subsequent in time to the mortgages. Their interest lies in the defeat of the trust company’s claim by McCue. McCue’s contention is that the mortgage to the trust company was given as security for an indebtedness of the construction company, and he and the receive^ of the construction company maintain that the indebtedness was subject to deduction on account of usury, and to a counterclaim of damages for the conversion of collateral held by the trust company as security. The trust company contends that the claims of usury and conversion have been adjudicated and denied in earlier litigation. The trial court held that there had been no former adjudication, that no usury had been exacted,
Detailed findings were made, and the facts found will be spoken of as established. The Scott City Northern Railroad Company was incorporated August-3, 1910. It'made a: contract with the construction company to build a line of railroad from Scott City to Winona, for which the construction company was to receive all the aid notes and bonds of the railroad company, all its stock that was not issued to municipalities, and its first-mortgage bonds to the amount of $825,000, the mortgage running to the trust company as trustee.' Under this contract the construction company received 4993 shares of the stock of the railroad company, aid notes and bonds amounting to $167,160, and the trustee held for its benefit $825,000 of the railroad company’s mortgage bonds. The construction company applied to the trust company for a loan of $400,000. The trust company refused to make the loan itself, but for a commission of $60,000 procured it to be made by The National Bank of Commerce of St. Louis, agreeing with the bank to find a purchaser for the note on demand, at the amount of principal and accrued , interest. The stock, aid notes and bonds, and railroad mortgage bonds already mentioned, were pledged as security for this $400,000 note, which was dated September 1, 1910, due in one year, bore interest at six per cent, and was signed by the construction company and also by McCue and E. A. Tennis, who were respectively its president and
About July 13, 1911, the five, original notes were surrendered, and in lieu of them, and also to cover an additional loan of $10,000, new notes, made payable to the bank, dated June 1, 1911, and due September 1, 1911, were executed as follows:
One note for $400,000, bearing six per cent interest, signed by McCue and Tennis, secured by a note for a like amount executed by the construction company to McCue and Tennis, which in turn was secured by the same collateral securing the original $400,000 note. McCue and his wife also gave as additional security to the note to the bank several real-estate mortgages, including the one sought by the trust company to be foreclosed in this action, and another upon lands in Anderson county.
Two notes for $100,000 each, signed by the construction company, and secured by the same collateral already referred to — the 4993 shares of stock in the railroad company, the aid notes and bonds, and the $825,-000 railroad mortgage bonds, which also secured the $400,000 note from the construction company to McCue and Tennis, which secured the $400,000 note from Mc-Cue and Tennis to the bank.
The trust company, as before, agreed to find a buyer for these notes on demand of the bank, and took up two of them in July, 1911, and the third in February, 1912. In all of these transactions the construction company was the real principal, and McCue and Tennis the sureties. The railroad was built at an expense of something over $180,000 in addition to the loans, for $600,-000.' The contract by which the stock, notes and bonds were pledged as collateral provided that they might be
On January 8, 1913, the trust company published a notice in the Times, a daily St. Louis newspaper, that it would on the 13th of that month sell the stocks, aid notes and bonds already described, for the purpose of satisfying the two notes for $100,000 each. On that date the property was offered for sale and bid in by Charles Campbell, an employee of the trust company, acting in its behalf, for $195,000. No notice of the sale was given to McCue, Tennis, or the construction company, and none of them knew anything of it. Campbell at once assigned the securities to the Ger-mania Trust Company, a corporation which was practically out of business, and which was controlled by the (Commonwealth) trust company. On the same day two of the railroad bonds were assigned to each of two employees of the trust company, and they, with the Germania company, signed a writing requesting the trust company to foreclose the mortgage at once. All the securities were afterwards assigned to the trust company.
The president of the trust company testified, 'in substance, that he believed the buyer under such a notice would take title to the property subject to the trust company’s lien upon it as security for the $400,000 note. Doubtless by reason of this testimony, and of the facts already stated, the trial court held that the sale was made subject to that lien, and gave the transaction the effect of a sale for $595,000. The statement so far made shows the basis of the claims made as to usury and conversion. McCue and the receiver of the construction company contend that the commission charged by the trust company for negotiating the $400,000 loan was in reality interest, and that the sale of the collateral was not conducted in good faith, and amounted to a conversion. What follows relates chiefly to the
In an action brought by the trust company in Logan county on January 27, 1913, a judgment was rendered foreclosing the railroad mortgage, upon which the railroad property was sold for $175,000 to the Colorado, Kansas & Oklahoma Railroad Company, a corporation owned or controlled by the trust company. McCue was made a party to this action, but filed no pleading. The trust company was made a party individually as well as in its capacity as trustee. The construction company filed an answer, raising the questions of usury and conversion substantially as those matters are presented in this case. The construction company (with other defendants) demanded a jury trial. The court announced that on account of the absence of W. M. Kinnison, who had been appointed receiver of thé construction company, it would not determine anything as to the rights of that company, but would hear such issues as were not triable by jury. Evidence was then taken and the court made findings with regard to the deposit of collateral for the security of the loans and the sale of the stock, notes and bonds so pledged, substantially as the facts have already been stated. Inferentially at least the court found against the claim of usury, for specific findings were made as to the amounts due on each of the three notes, the one for $400,000 and the two for $100,000 each, and that the contracts of pledge were valid. The court also stated in writing a number of conclusions of law, among which were that the purported sale of collateral was a nullity, that no conversion resulted, and that the trust company was still the holder of the stocks, notes and bonds as security for the balance due on the notes held by it, the construction company being the owner subject to that lien. The judgment recited that an immediate sale of the property had been petitioned for in accordance with the statute by a majority in amount of the holders of the
On January 17, 1913 (all the dates in this paragraph being in the same year), .a petition was filed in the district court of Logan county, in the name of the state, asking the dissolution of the construction company, and an order was made appointing W. H. Wagner its receiver, in accordance with the statute. (Gen. Stat. 1909, § 1728.) A summons for the company was issued, to the sheriff of Finney county, by whom it was served on McCue, its president. The company on February 19 filed a motion to quash the service on the ground that the action was transitory, and not local, which was sustained on May 27. No further proceedings were ever had in the case. W. M. Kinnison was appointed receiver of the construction company by the district court of Finney county, on March 29, in an action brought by a creditor. Neither McCue, the construction company, nor Wagner were originally made parties to the action brought to foreclose the railroad mortgage. On March 7 McCue filed a motion asking that they, and the trust company in its individual capacity, and others named, be made defendants. On March 18 the court ordered that Wagner, as receiver, enter an appearance immediately; that the trust company individually should do the same, or if it did not, that the plaintiff should make it a party; and that McCue and the construction company (with others) were granted leave to file such intervening petitions or interpleas as they might desire on or before April 1. Wagner, as receiver, filed a general denial on March 31, and an amended answer alleging usury and conversion on May 27. The construction company filed an answer alleging usury and conversion on April 2.
The trust company contends that the proceedings of the Logan county district court just narrated constitute an adjudication that no usury was exacted, and that
The rule that a judgment settles not only the matters actually litigated, but also those that might have been litigated, applies only where the same cause of action is sued on. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; 23 Cyc. 1295-1297.) The trust company did not — in the sense which is here important — sue McCue in Anderson county upon the $400,000 note. It sued him upon the mortgage. It merely sought to have the proceeds of the sale of the Allen county land — or any surplus after the payment of the first mortgage — paid to it to apply on that note. In the present action the trust company declared upon its mortgage on the Haskell county land. McCue and the receiver of the construction company raised the issue as to what was owing on the $400,000 note by pleading, in effect, that it had been fully paid. That issue was not in fact contested in the Anderson county suit. A finding is an adjudication only as it is given effect in a judgment. (23 Cyc. 1227.) The recital in the journal entry of the amount due hardly seems to have entered into the substance of the judgment, which was that the residue of the proceeds of the sale, after satisfying prior liens, should be
The action brought by the trust company in Logan county was originally one merely for the foreclosure of the mortgage on the railroad property for the benefit of the owners of the bonds, whoever they might be. The plaintiff as trustee had authority to bring it, and the question of who owned the bonds was important only because a sale within three years could not be made without the consent of a majority of them. The construction compány was made a party on motion of McCue, and raised the question of usury and conver
A more difficult question is whether the judgment also concludes Kinnison, as receiver of the construction company. He was appointed March 29, 1913. The
The question of usury appears to be purely one of fact. In form the original transaction between the construction company, the bank and the trust com
The finding made by the trial court that the sale was valid and that there was no conversion was essentially (in view of the more specific and detailed findings) a conclusion of law, and is subject to review. The court did not find that the sale was valid, regarded as one made for $195,000, the amount of the bid, but that it was to be deemed a sale for $595,000, a view sustained by this reasoning: The transaction was completely controlled by the trust company. It was both seller and buyer. In each capacity it understood that the sale
We think the sale was obviously made in violation of the trust company’s duty to McCue and the construction company, and therefore amounted to a conversion, not because the pledgee was the buyer, but because it was not made fairly and in good faith. The contract of pledge authorized the trust company to béeome a bidder, and such agreements are upheld. (Chouteau v. Allen, 70 Mo. 290; Jones on Collateral Securities, §635.) But the circumstance that the pledgee bought at its own sale doubtless justifies an especially close scrutiny of the transaction, and at all events the utmost good faith must be shown. (31 Cyc. 879.) The trial court found that the purpose of the trust company was not to sell the collateral to the highest bidder, or for the largest amount available, but that it had a secret intention to retain a.lien upon it for $400,000. The evidence sustains the finding, and justifies the inference of a purpose to gain title to the securities without making a fair and reasonable credit upon the principal debt. The trust company was under no positive obligation to notify McCue or the construction company of the sale, but its omission to do so is a circumstance to be weighed with others in determining whether concealment was intended. That the trust company, being itself the real buyer, saw fit to take the title in some one else, might not of itself have any special significance. Considerations of convenience might have suggested that method of doing the business. But elaborate steps were taken (the details of which need not be gone into) to
Various remedies might be open for the wrong done, but under the peculiar complications that have arisen in this case, the receiver being the only party who is in a position to complain, the only remedy available seems to be the recovery, for the benefit of the creditors of the construction company, of damages measured by the loss occasioned to that company by the conversion in excess of its indebtedness on the notes. Should such amount exceed the legitimate claims of creditors, the surplus would of course not go to the construction company or its stockholders, but back to the trust company.
The trust company contends, and has consistently contended at all times, that the district court had no
The judgment creditors of McCue (Rice and the New England National Bank of Kansas City) have liens only on the interest of McCue, and their claims are subordinate to that of the trust company.
The findings of fact made by the trial court, except so far as they state the legal effect of the sale of the securities, are approved. The judgment is affirmed as to the plaintiff; otherwise it is set aside, with direction^ to grant to the trust company the relief asked against McCue and to award to the receiver (for the benefit of the creditors) damages against the trust company in such sum as that company shall be found to have suffered from the conversion referred to. The plaintiff and the receiver will have judgment against the trust company for their costs on the appeal. The trust company will have judgment against McCue for one-half its costs. Otherwise the parties will pay their own costs.