60 Kan. 44 | Kan. | 1898
The opinion of the court was delivered by
This action was brought by J. G-. Wood-rum against the Washington National Bank to recover a balance of money claimed to be due to the plaintiff from the defendant, and also to obtain the cancela
The substance of the plaintiff’s claim was, and he offered testimony tending to show, that on the 19th of October, 1891, he owed the bank one note for $4551.45 and no more; that at that time the bank held- as security for this indebtedness a check given by Clay, Robinson & Co., dated July 11, 1887, for $3500, a cash deposit of $500, and the collateral notes executed by Mrs. Woodrum, secured by mortgage on her land, which was the basis of litigation in the case of Susie E. Woodrum against the Washington National Bank, just decided (ante, page 34) ; it also held á judgment against Clay, Robinson & Co. for $3878 recovered for the wrongful destruction, by Texas fever, of certain cattle belonging to the plaintiff in this action, on which the bank held a mortgage to secure his indebtedness to it. This judgment was rendered in an action brought by Woodrum against Clay, Robinson & Co., George E. Elwood and the bank to recover his damages occasioned by the introduction of Texas fever into a large herd he then owned, by Elwood and Clay, Robinson & Co. At that time Clay, Robinson & Co. held a note against Woodrum for $8000 with ten per cent, interest, dated March 4, 1887. The bank answered in that action setting up its chattel mortgage on certain of the cattle affected by the fever, and claiming damages to the extent of the value of
Although it is contended on the part of the defendant in error that the evidence fails to show what agreement was entered into between the bank and Clay, Robinson & Co., we think the evidence offered by the plaintiff fairly tended to show, and in the absence of ahy counter proof was sufficient to establish that on the 27th of September, 1894, Clay, Robinson & Co. executed an assignment to the bank of the judgment in their favor against Woodrum, which amounted to $5677.25, and interest, and on Octoher 9, 1894, the bank by its president and cashier entered a release and satisfaction of its judgment for $3878
After the plaintiff had introduced his testimony the bank moved for judgment in its favor for the balance due under the judgment rendered in favor of Clay, Robinson & Co. against Woodrum, claiming that the evidence of the plaintiff showed the following state of accounts at the date of the judgment: That the plaintiff owed the defendant on the judgments assigned to the bank by Clay, Robinson & Co. with interest computed to date $8271.42, and was entitled to a credit for the amount claimed in the petition with interest computed to date $3536.61, and- for the further sum of $1941.22, being the difference between the amount of the $3878 judgment and interest to date and the $3000 cash payment" made by Clay, Robinson & Co. to the bank at the time of the assignment of the judgment. The court sustained this motion and entered judgment in favor of the bank for $2793.59. The theory of the case held by counsel for the bank is very simple. Woodrum owred the bank a note of $4551.45 and interest. He owed Clay, Robinson & Co. originally $8000. Allowing him all that was recovered as damages to his cattle and all that has been collected by the bank, including $500 cash deposited, there is still due on these two debts the amount for which judgment was entered; that it is no concern of Woodrum’s whether the judgment entered in favor of Clay, Robinson & Co. is collected by them or by the bank, as the debt was not increased ' by
It is a general rule of law that where a trustee or custodian of the property of another makes an unauthorized exchange of it for other property the owner has his election to charge the trustee with the value of the property as for a conversion or to take the specific property received in exchange for it. In other words, if one enters into unauthorized specula
But it is said that this allows Woodrum a discharge from a part of the debt he honestly owed without payment of it, and that this is unjust. It is answered, however, that the bank has in this case obtained a large judgment against Woodrum, for which it not only paid nothing itself but which it obtained by using a fund belonging in equity to Woodrum when Woodrum’s debt to it had been more than paid and it was justly owing him a considerable balance ; that as the case stands the bank has received a considerable sum in excess of all that was due to it from every source, and also has obtained a judgment in this case for $2793.59, which does not in fact represent a dollar of indebtedness that Woodrum or any one else owes to it. Certainly the bank has no superior equities to
What has been said in the foregoing opinion is based solely on the pleadings and the testimony offered on behalf of the plaintiff. What may be developed by evidence from the other side we do not know, and, of course, have no purpose of prejudicing the case of the defendant on another trial if the facts be made to appear differently from those now presented, but it has seemed necessary to say so much in order to express our view of the law for the guidance of the court on another trial. The view taken by the trial court on the case presented was erroneous. The judgment must be reversed and the cause remanded for a new trial.