113 Kan. 213 | Kan. | 1923
Lead Opinion
The opinion of the court was delivered by
On April 24, 1920, the Haddam State Bank entered into a written contract with C. I. McHenry by the terms of which he was to use on his farm certain personal property on which the bank had a chattel mortgage in the form of a bill of sale, a part of the proceeds to be used in the payment of his indebtedness to the bank. One provision of the contract was that the bank was to advance $50 a month for the payment of Milt Ross for labor on the land. Ross brought this action against the bank for his services on the farm from October 12, 1920, to March 1, 1921. A demurrer to his evidence was sustained, and he appeals.
The plaintiff testified to this effect: He worked at McHenry’s from October, 1919, to March 1, 1921. He was paid for his work to October 12, 1920, but not for the remaining period. In April, 1920, the representative of the bank told him that if McHenry signed the contract already referred to the bank agreed to advance $50 a month for his wages until the first of March. This was in response to his inquiry whether a check which he had from McHenry, and which the bank paid, was any good. Shortly after this he learned that the contract had been signed and in July he saw a copy of it. The banker never told him not to continue at work. In November, 1920, he presented a check from McHenry and the bank refused to pay it, making the statement in January that because of a controversy over some wheat he would have to look to McHenry and not to the bank. Another check was drawn which the banker at first agreed to pay, but after some argument with McHenry refused to take, not saying anything however about the plaintiff quitting work.
This testimony was objected to as an attempt to vary the terms of the written contract by parol, but we think it competent, having no tendency to contradict the writing, and shedding some additional light upon the relations of the parties. The bank’s position is not that of one making a promise to pay the debt of another. It appears to have had a direct interest in the carrying out of the plan of operating the farm, and there is at least room for the inference that it wished Ross rather than some other person to be employed there, and encouraged him to continue in the employment upon the faith
“No bank shall employ its moneys, directly or indirectly, in trade or commerce, by buying and selling goods, chattels, wares and merchandise, . . . Provided, That it may hold and sell all kinds of property which may come into its possession as collateral security for loans or any ordinary collection of debts, in the manner prescribed by law, but any goods or chattels coming into possession of any bank as aforesaid shall be disposed of as soon as possible, and shall not be considered as a part of the bank’s assets after the expiration of six months from the date of acquiring same.” (Gen. Stat. 1915, § 524; Laws 1921, ch. 70, § 1.)
Here the bank, having lent money to McHenry upon his personal property, appears to have permitted him to retain and use it on his farm, doubtless in the hope of realizing more out of it in that way than by an immediate sale. The bank had a right to incur expenses for the handling of property upon which it had acquired a lien. The statutory requirement that chattels coming into the possession of a bank shall be disposed of as soon as possible has some elasticity, and the penalty of too long a delay seems to be that the property shall not be treated as a part of the live assets. The bank was placed somewhat in the attitude of becoming a party to a joint venture in running a farm, but it was for the purpose of attempting to collect an existing debt. We are not persuaded that it exceeded its powers, but if so that fact did not justify it in refusing
The judgment is reversed, and the cause is remanded for further proceedings.
Rehearing
OPINION OVERRULING A MOTION FOR A REHEARING,
(Filed April 16, 1923.)
In a petition for a rehearing the defendant suggests that the opinion handed down is ambiguous; that under one construction the bank would be held liable for the services of the plaintiff even after it had notified him that it would no longer pay him. It asks that the language be modified in this and other respects so that the meaning may be made clear.
The sole question presented was whether the demurrer to the evidence was properly sustained. We hold that the evidence would support a recovery for the plaintiff’s services at least for a part of the time for which he made claim. We do not pass upon the question whether such notice as the plaintiff testified the bank gave him would end the period for which it was liable. We hold that misconduct on the part of McHenry would not in and of itself relieve the bank from liability to the plaintiff for services performed under the contract. We do not hold that the bank was unable to sever its relations with the plaintiff on account of his own misconduct or of his participation in misconduct of McHenry. We think it inadvisable to decide further questions upon the present record.
The motion for a rehearing is overruled.