Fall River County v. Minnekahta State Bank

Fuller, J. This appeal is from an order of the circuit court sustaining a demurrer to the complaint in this action upon the ground that the same does not state facts sufficient to constitute a cause of action. The object of the suit was to compel the defendant and respondent to deliver up and surrender to the clerk of the circuit court, for cancellation, a $5,000 county warrant, and to require the satisfaction of a judgment which respondent had obtained thereon in an action against plaintiff and appellant herein, and to restrain respondent from assigning or in any manner disposing of, said judgment. The substantive facts stated in the complaint are, in effect, as follows: Prior to August 14, 1891, appellant, a municipal corporation, had negotiated certain bonds issued by the county for the purpose of defraying the expense of erecting a court house and jail, and James Bradley, who, as county treasurer and custodian of appellant’s funds, had received $5,000 as the proceeds [541] thereof, thereupon deposited the same with respondent, a banking corporation, under an “express agreement that said money should be held by the bank as a special deposit and trust fund for the purpose of paying any warrants drawn upon said court house and jail fund, and that on or about December 16, 1892, the officers and agents of said defendant bank expressly agreed with said James Bradley, as treasurer aforesaid, that the -warrant hereinafter set out and described, and the judgment obtained thereon, should be paid and satisfied by this said deposit as aforesaid made by the said Bradley, so far as the same might apply.” Following this averment is an allegation that on the 16th day of February, 1892, a judgment, afterward affirmed by this court, was rendered and entered in the circuit court against appellant county, and in favor of the respondent bank, for $5,053.05, including costs upon the $5,000 warrant; and a copy of said judgment and warrant are set out in the complaint. At the time of the deposit a contract for the construction of the court house and jail existed between appellant and Fred Evans, president of the respondent bank, the validity of which was denied, ‘ ‘and the validity and legality -of the warrants issued or to be issued to the said Fred Evans in payment therefor were denied, and the same were in litigation in the courts of this state, for which reason the said James Bradley, as county treasurer, had refused to recognize, as valid, or to pay, any warrants issued to said Evans in payment for the erection of said court house and jail, all of which facts were well known to the defendant bank, its officers and agents.” It further appears that after the rendition and affirmance of said judgment, and before the commencement of this suit, and while said special deposit of $5,000 was in the possession of the respondent bank under the above-mentioned express agreement upon the part of said bank, to satisfy said judgment therewith so far as the same might apply, said James Bradley, as treasurer of, and in behalf of, appellant county, ‘ ‘demanded of said defendant bank that the said court house and jail fund deposit [542] of said Bradley as treasurer aforesaid be applied upon the payment of said judgment, and the said Bradley at the said time and place offered to said defendant bank, through its officers and agents, to pay the said defendant bank by and with the said deposit of the court house and jail fund hereinbefore set out, which said demand and offer of said Bradley were, by the officers and agents of the said defendant bank, refused; that thereafter, to wit, on August 25, 1893, the said Bradley, as treasurer aforesaid, received from W. L Judkins, clerk of said court, a statement of the amount of said judgment, with the costs and interests then due and unpaid upon said judgment, and thereupon the said Bradley drew, and delivered to the said Judkins, as clerk of said court, his certain check against the defendant bank for the amount of said judgment, with accrued costs and interest, to be applied to the satisfaction and payment of said judgment, which said check was on the same day, to-wit, August 25, 1893, presented to the cashier of said defendant bank, with the demand of the said Judkins, clerk as aforesaid, that said defendant bank acknowledge satisfaction of said judgment, which the said cashier refused to do, * * * and that the said defendant bank has at all times refused, and still refuses, to apply the said money so as aforesaid deposited by the said Bradley to the payment of said warrant or judgment, or any part thereof, * * * notwithstanding the fact that said moneys were so as aforesaid deposited for the sole and only purpose of paying said warrant or judgment.” It is also averred that the bank, said Bradley and his bondsmen are each a,nd all insolvent, and that respondent has, since the rendition of judgment thereon, assigned said warrant, and is about to assign and transfer said judgment, and, unless restrained by the court, will assign and transfer the same, to the irreparable damage and injury of appellant, who is without a speedy, plain and adequate remedy at law. This complaint, the essential portions of which have been stated, concludes with a prayer sufficient to entitle appellant to [543] some of the relief demanded, provided the complaint states a cause of action. Bradley, as county treasurer and financial agent of appellant, was charged with the safe keeping and lawful disbursement of the $5,000 deposited with respondent bank pending the litigation between the parties', by which the warrant previously drawn thereon was found to be a legal claim, and was reduced to judgment in respondent’s favor, and against the appellant county. Under the agreement entered into between the parties on the 16th day of December, 1892, and after a final determination of the action based upon the $5,000 warrant drawn upon the fund thus specially deposited, it was the duty of respondent to apply the same on said judgment in partial satisfaction thereof. The transaction amounted to a payment of $5,000 by a judgment debtor to a judgment creditor under an agreement and with the understanding that the same should be applied and used, so far as it would go, towards the discharge of an indebtedness evidenced by the judgment to which the agreement related, and an action may be maintained to enforce said contract without any previous demand. Where a bank agrees to apply a special and specific deposit of money to the satisfaction of a judgment existing in its favor against one who has deposited such funds, no further notice, request, or demand is necessary before the commencement of a suit having such agreement for a basis. Catterlin v. Somerville, 22 Ind. 482; Niemeyer v. Brooks, 44 Ill. 77; 5 Am. & Eng. Ency. Law, p. 528, and numerous cases there cited. The beginning of the action itself is a legal demand. Moreover, it is alleged that “on or about June 28, 1893, the said Bradley, as treasurer aforesaid, in behalf of plaintiff, demanded of said defendant bank that the said court house and jail fund deposit of said Bradley, as treasurer aforesaid, be applied upon the payment of said judgment * * * and that said defendant bank has at all times'refused, and still refuses, to apply the said money so as aforesaid deposited by the said Bradley to the payment of said warrant or judgment, or any part thereof.” The subse [544] quent offer to pay the $5,000 deposit in full settlement of tlie judgment of $5,053.05, and the drawing of a check for that amount upoa said bank, are items of-no importance; and the view we have taken renders unnecessary a discussion of the right in equity to set off a claim not judicially determined, against one that has been reduced to a judgment. In our opinion the facts alleged in the complaint, if proven., would entitle appellant to some of the relief prayed for, and the order sustaining the demurrer is therefore reversed.