86 Kan. 468 | Kan. | 1912
The opinipn of the court was delivered by
The officers of the Grand Lodge of Masons sued the bank to recover $3045.20 alleged to have been knowingly appropriated by it from the funds of the Grand Lodge to pay a personal debt owed by the grand treasurer, Sarbach, to the bank. Sarbach had made a note to cover an overdraft, and on Saturday, March 6, 1908, he sent to the bank by a messenger a personal check payable to himself (Sarbach) for $4000. The assistant cashier credited the amount of the check to Sarbach’s account as grand treasurer.. Monday Sar-bach called up J. Q. Myers, the president, and asked if he had noticed the deposit. Myers said he had not, but looked it up and told Sarbach it had been credited to his account as grand treasurer, and Sarbach said, “It was? Well, you know what I want done with it; you know that I want to pay that note,” and directed Myers to charge his note up to the account, and this was done. The plaintiffs claim that the lodge should recover this from the bank on the ground that having been credited to the lodge fund the proceeds of the check became its property.
Complaint is made that Myers was permitted to testify to the conversation with Sarbach, but no error was
It is claimed that the twelfth, thirteenth and fourteenth findings of fact are not supported by the evidence. These are to the effect that the credit was made to the grand treasurer’s account by mistake and contrary to Sarbach’s intention, that the check for $4000 was the individual property of Sarbach, who intended his note to be paid out of it, and that he did not know the credit had been made until the 8th, when he, having full right to do so, directed that the amount of his note be taken out, leaving a balance in the grand treasurer’s account of $954.60 upon the books of the bank. It is claimed that finding No. 23 is contrary to the evidence. This finding is that the evidence does not show whether on the 6th, 8th or 9th of March Sarbach was short in his accounts or whether he in fact had on hand the full amount of which he was rightfully chargeable to his account as grand treasurer. The abstract does not contain the evidence, and it is only by going to exhibits introduced in evidence and not set out in the abstract or transcript that it could be ascertained whether this finding is ‘or is not supported. No fault is found in the brief with any other findings than 12, 13, 14 and 23, although in the assignment of errors numbers 5 and 16 were complained of. Findings 2 and 3, of which there is no complaint, are to the effect that on February 20, 1909, checks or orders amounting to $2518.94 were drawn on Sarbach and $1900 thereon paid between that and March. 3 out of deposits in the bank, and that it does not appear from the evidence that this had been refunded prior to the debiting of his account with the amount of his note with J. Q. Myers. Finding number 4 is that Sarbach had no instructions or directions where to keep the lodge funds, and that the evidence does not show whether he had a.deposit as grand treasurer elsewhere than in the city of Holton or not. The twenty-first finding', of which no complaint is
It is vigorously asserted and denied that we can look beyond the transcript or abstract to ascertain the support or lack of support for No. 23. It appears that certain documents were referred to and indicated portions of them introduced in evidence, though not copied into the transcript. While, generally, the transcript should contain all the evidence, so that a counter abstract can, if necessary, be prepared therefrom, still sections 574 and 575 of the civil code provide that the duly certified stenographic notes of the testimony and proceedings shall become a part of the record in the cause,- and that “all papers and exhibits filed with the clerk” (Civ. Code, § 575.) shall be deemed a part of the record. Plaintiff asserts that pursuant to the provisions of the next section (Civ. Code, § 576) these portions of the record are submitted in order to settle the dispute as to what the record really shows. As under this section we could send for and- examine these docu
The second count of the answer alleged that at the time of depositing the check it was Sarbach’s intention that so much of the proceeds as might be sufficient should be used to pay off his note, and that by mistake and without his knowledge or authority the full amount of the check was credited to the grand treasurer’s account, that upon learning that such entry had been made Sarbach directed that his note be paid there-out, “then having full and absolute right, power and authority so to do.”
To this an unverified general denial was filed, and it is argued that the allegation of power and authority must therefore be taken as true under section 110 of the civil code. We do not think this was an allegation of any power or authority by way of agency such as is
Case No. 17,783, submitted and argued with the one we have been considering, involves but one question. The third count of the answer in case No. 17,435 set forth the death of Sarbach, the appointment of an ad-ministratrix, the receipt by her of assets amounting to over $40,000 liable to payment of claims of creditors, and that on October 30, 1909, plaintiffs filed in the probate court their verified claim against the State Bank amounting to $16,358.99, which claim included the claim sued upon by plaintiffs in this action, that such claim was allowed in full by the probate court and assigned to class 5, such allowance being still in full force, unreversed and unappealed from. That by reason thereof the plaintiffs as general creditors, with full notice, having thus presented their claim and had it allowed, were barred and estopped from asserting against this defendant this claim which is included in the one allowed by the probate court. To this count of the answer plaintiffs demurred and the demurrer was sustained, and an appeal from this ruling was docketed in this court as case No. 17,783.
It is argued by the defendant that by presenting their claim to the administratrix and having it allowed and assigned to the fifth class the plaintiffs elected to pursue a remedy inconsistent with their action against the bank; that they thereby elected to treat their claim as a debt against the estate of Sarbach as for a conversion, and that their .alleged right of action against the bank is based upon the theory that they have not parted with ownership of the proceeds of the check in controversy, a position inconsistent with the claim that
The judgment in case No. 17,435 is reversed, with directions to grant a new trial.
The order sustaining the demurrer in case No. 17,783 is affirmed.