Royce v. Bank of Commerce of Walter

DüNN, J. (after stating the facts as above). In the decision of this controversy it will be unnecessary to consider more than the proposition of whether or not the court erred in sustaining the demurrer to defendants’ special answer. Strictly speaking, a special answer is unknown to our practice. On the filing of a petition defendant may file a motion, demurrer, or answer, and, although he may denominate his pleading a special answer, and even though it may appear in separate parts for the purpose of its construction, it will be considered in accordance with the statute and his intention,.but one pleading and one answer. Be- *487 fenclant urges as error the action of the court in sustaining a demurrer to his so-called “Special Answer.” This raises the question as to whether or not the allegations contained therein constitute a defense or counterclaim to the cause of action set up in plaintiff’s petition. It will be observed from the allegations that the bank commissioner believed and found that the assets of plaintiff bank were impaired to the extent which in his judgment justified him in calling upon the defendants Eo^ce, Eoss, and Snow, officers of the bank, to make good the deficiency under penalty of having it closed; that among> other things which caused and occasioned this belief and finding was the absence of the notes mentioned aggregating the sum of $938.90; that these defendants borrowed the money, and placed it in the bank to take the place of these missing assets, and now, when being sued upon this note, claim that, since the bank has been made whole upon these items by their cash deposit, these notes should, in fact, belong to them. In other words, that these defendants having saved the bank and placed in it the amount of these missing items, the bank ought not to keep botb their money and the notes or the proceeds thereof, and the defendants should be permitted to be subrogated to the rights of the bank in these items. In our judgment this contention is correct. To hold otherwise would be to permit the bank to not only hold these assets, but to take from those- defendants without any consideration whatever the funds which they advanced to protect it, and would enable the other stockholders, to apportion among themselves, along with these defendants, the money advanced by the defendants, and this without any consideration whatsoever. The bank- takes the position in its brief that this advancement by these defendants was a voluntary assessment, and defendants cannot recover by reason thereof, and cites in support thereof the case of Brodrick v. Brown (C. C.) 69 Fed. 497. We have examined that case, but in our judgment the facts are not at all the same as in the case at bar. It will be observed that in the case cited each of the stockholders of the bank was assessed 50 per *488 cent, of his stock, and the general cash book of the bank contained the entry denominating it a voluntary assessment. It was advanced by all the stockholders to repair an actual impairment of the credit of the bank, and was intended by them at the time to be an assessment. In the case at bar it will be observed that but three of the six stockholders as alleged in the answer advanced anything, and that was a lump sum of ,$2,000, and this under the mistaken conditions as averred. Whatever may have been the effect of the payment or deposit made necessary to have restored the- assets actually impaired, whether a voluntary assessment or not, it is clear that the principle controlling it would not obtain as to the deposit made under the conceded mistake, the purpose and intention of which being to supply assets believed to be lost. But, when it was discovered that such assets were not in fact lacking or lost, but merely misplaced, and that all parties acted under and through the erroneous, though honest assumption that they were lost, then certainly, when théy are discovered and restored, those who have come to the rescue of the bank when it was in danger ought not, by reason of this magnanimous act on their part, to be made to suffer and the other stockholders who have been the recipients be permitted, not only to keep the restored assets, but also the funds advanced to take their place. The case is accordingly reversed and remanded to the district court of Comanche county, with instructions to set aside the judgment heretofore rendered and to grant a new trial. All the Justices concur.