171 Ky. 757 | Ky. Ct. App. | 1916
Opinion of ti-ie Court by
Affirming.
Tlie appellants, Riffe and Jones, were engaged in the produce business, and the firm ran an account with the appellee bank from July 1, 1907, to June 30, 1912. The account was kept in the usual way by deposits being made from time to time, and checks being drawn against it in the same manner. On February 4, 1913, the firm filed this suit in equity against the bank,, charging in substance that during the time of the running of the account they had deposited something near $100,000.00, and the bank had improperly kept its books by failing to credit it with deposits, none of which was designated, and had wrongfully charged the account with unspecified amounts, and that the facts, as plaintiffs believe, would show the bank to be indebted to the firm in a sum at least as much as $1,500.00, for which amount they prayed judgment, and in the petition ask that the case be referred to the master commissioner. A demurrer was filed to the petition by the bank, but there is no record of it ever having been acted on. Some time after the filing of the demurrer an answer was filed by the bank, which is a general denial, and, following this, an amended petition was filed, in which it is stated that plaintiffs’ account with the bank should have, but had not, been credited with the following amounts: August 12, 1908, $200.00; May 28, 1909, $10.00; June 1, 1909, $99.00; February 26, 1910, $100.00; June 7, 1910, $352.72; September 21, 1911, $43.10; April 2, 1912, $517.05. It is furthermore alleged in the amended petition that the account had been wrongfully charged with two checks which had been issued by the firm of Riffe & True, the amount of these checks being one for $23.70, and the other for $6.90, or a total- wrongful charge of $30.60. These alleged errors against plaintiffs aggregate $1,352.47, for which amount judgment was prayed in the amended pleading. These items were put in issue by an appropriate pleading,, which.
The only testimony in the case consists of the deposition of the plaintiff, Jones, and that of the cashier of the defendant. The former, in giving his deposition, exhibited his pass book, as well as one or two deposit slips, and these, as presented by him, had a tendency to establish at least a part of plaintiff’s claim, but the deposition of the cashier very thoroughly, to our minds, explained these apparent errors. By the cashier it is shown that the two items in issue, of $200.00 August 12, 1908, and $100.00 February 26, 1910, while shown as deposits on the pass book exhibited with the deposition of plaintiff, were not in reality deposits as of the dates shown, but on those particular dates, in order to take up overdrafts then existing, the plaintiffs executed the two notes for the respective amounts, neither of which was entered upon the ledger or books of the bank at that time, as the cashier was not authorized to accept the notes without the consent of the directors, and he temporarily carried the accounts in this way on his own responsibility. Later on the notes were accepted by the bank and afterwards paid, and at the time of the acceptance the plaintiffs were given credit for the proceeds.
As to the two items of $99.00 of date June 1, 1909, and $43.10 of date September 21, 1911, it is shown that while on the plaintiffs’ pass book these items were entered as deposits, as a matter of fact they were;
With the proof as we have explained it, it is contended that the judgment should be reversed because it is flagrantly against the evidence, and that the court should have transferred the case to the ordinary docket, or, if not, should have sustained the motion for an issue out of chancery. As to the first contention, we confess our inability to discover any grounds whatever for it. On the contrary, as we view it, the evidence overwhelmingly supports the judgment. Indeed it is doubtful if
As to the two motions made by the plaintiffs looking to a jury trial of the issues, it might be seriously questioned whether, under section 10 of the civil code, and cases construing it, the plaintiffs had a right to have a jury trial. There were eight items involved, and at least two of them were composed of several other items, all of which made the matters to be investigated considerably complicated, and we are not altogether certain but that these matters were properly triable by the chancellor, under the provisions of subsection 4 of section 10 of the code, supra. Moreover, with the evidence of the convincing character that we have found it to be, we are confident that the jury could have come to no other conclusion than that reached by the chancellor, and, therefore, the plaintiffs were not prejudiced by the action of the court in overruling their motions. But for a still further reason we are convinced that the court properly overruled these motions; in order for the party to succeed with this character of motion it should be seasonably made. In this case the motion to transfer the case to the ordinary docket seems to have been practically abandoned, and the motion for an issue out of chancery was not made until nearly a year after the suit had been filed, and not until many months after the issues had been made up and the proof taken. Under repeated rulings of this court, the latest of which is Proctor v. Tubbs, 166 Ky. 676, the plaintiff was too late in making them.
Finding no error prejudicial to the substantial rights of the appellants, the judgment is affirmed.