Krueger v. First State Bank

Robinson, J. The plaintiff sues to recover over $2,000 which he-had on deposit with the bank. The defense is that the money was paid out for and at the request of the plaintiff on a Judgment against him by one Kennedy. A verdict and judgment was given for the plaintiff and defendant appeals. The plaintiff claims that the Kennedy judgment was recovered against him on an appeal bond which he signed as surety for one of the 'banks. The defmdant bank absorbed and took over the property and assets of the state bank, in whose name-the appeal was taken. The state bank was perfectly solvent and had property more than enough to pay all its debts and liabilities, and the defendant purchased all the property and became the successor of the state bank. The claim is that, by special contract and also- by operation of law, the defendant bank became liable for all the debts and obligations of the state bank, including the liability on the appeal bond made to Kennedy. In 1906 the state bank received from Kennedy a draft for $1,700, on which it received the money and wrongfully used the same. Kennedy sued the bank to recover hip* money with interest. There was no real defense and judgment was given against the bank for $2,020, and on March 13, 1909, for the purpose of delay, an appeal was taken to the-supreme court and the judgment was affirmed. 22 N. D. 70, 132 N. W. 657. The appeal bond was dated October 2, 1909, and signed thus: State Bank'of Bowbells, By I. D. Langford, Cashier. A. B. Bickford- ID. O. Krueger,. [313] On the trial of this case there -was a mass of oral and documentary evidence submitted on the question as to whether or not the defendant assumed the liability of the state bank. It was fairly submitted to the jury as a question of fact, and the verdict was against the defendant. A motion for a new trial was denied. The reasons given were that there was no prejudicial error, and that the defendant had assumed the liability of the state bank upon the Kennedy judgment. Exhibits 4, 5, and 6 are minutes of the stockholders and directors of the respective banks. Exhibit 4: “A meeting of the stockholders of the State Bank of Bowbells was held at Bowbells this 16th day of December, 1907, to consider a proposition made by the Eirst State Bank of Bowbells to take on all assets and assume all liabilities of the said State Bank of Bowbells at par value. On motion the proposition was accepted and transfer ordered.” Exhibit 5: “Bowbells, N. D., Dee. 24, 1907. A meeting of the stockholders and directors was called by the president for the purpose of discussing the purchase of the State Bank of Bowbells. It was decided to take over the business of the state bank, assume their assets and liabilities, thus merging the two institutions under the name of the Eirst State Bank.” Exhibit 6: “Bowbells, N. D., Jan. 4, 1908. A meeting of the stockholders and directors of the Eirst State Bank of Bowbells was held in the office of the bank, and the affairs of the bank examined. It was found that the affairs of the state bank had been assumed as per purchase authorized under meeting of December 24, 1907.” G. L. Bickford was chosen president; A. B. Bickford, cashier. In the brief of counsel for defendant and appellant the leading question argued.(and the only question of the case) is: Did the defendant bank in its transaction with the other bank assume its contingent liability to W. T. Kennedy on the appeal bond? Counsel for defendant does everywhere designate it as a “contingent liability” and “a mere contingent future liability,” and he bases his argument largely on the assumed contingency of the liability. But in truth it wás not at all contingent; and it was an existing, and not a future, liability. The state bank had received and used Kennedy’s [314] •draft for $1,700, and the defense was the merest sham, and the facts were known to the officers of both banks. The manifest purpose of one bank was to close out its business and to dispose of it, and the purpose and agreement of the defendant bank and its stockholders, as expressed by their resolution, was “to take over tbe business of tbe state bank and to assume its assets and liabilities, thus merging tbe two institutions under tbe name of tbe First State Bank.” Tbe appeal bond was signed after tbe merger, and it was signed by A. B. Bickford, cashier of tbe defendant bank, and bis name was put on tbe bond before tbe name of tbe plaintiff, and presumably tbe plaintiff signed tbe bond at tbe request of tbe defendant bank or its cashier to stave off its liability on an obligation for over $2,000. While tbe appeal was taken in tbe name of tbe defunct bank, there are reasons for thinking that it was in reality taken by its successor, tbe defendant. If tbe defendant bank took tbe appeal, or if tbe appeal was really taken for its benefit, if it induced tbe plaintiff to sign tbe appeal bond or if it in any way became legally bound to pay tbe Kennedy judgment, then, .as surety for tbe defendant bank tbe plaintiff bad a perfect right to request it to pay tbe Kennedy judgment and to discharge him from tbe bond to which be bad subscribed bis name under tbe name of defendant’s cashier. On tbe trial tbe court excluded offers to prove in effect that, when tbe defendant bank contracted to absorb tbe other bank, no special reference was made to Kennedy’s claim; that tbe book assets of tbe state bank amounted to over $53,000, and its liabilities to over $43,000, and that tbe difference was paid to tbe state bank, and that it assumed liabilities which were as follows: Certificates of deposit...........................77................. $23,280.12 Individual deposits ................................................. 20,161.53 Interest ...................................................... 325.76 The proof would have rather strengthened tbe claim of tbe plaintiff. It indicates that tbe defendant bank assumed liability for tbe individual deposits, and tbe claim of Kennedy was an individual deposit of $1,700, on which there never should have been any question or dispute. Then tbe court excluded an offer to prove an oral agreement [315] between the two banks that the Eirst State Bank should not assume .any liability for the claim of Kennedy. This offer is in conflict with the prior offer to show that, at the time of taking over the assets and .assuming the liability of the State Bank of Bowbells, no reference was made to the claim of Kennedy; and the offer was not sufficiently specific, as it did not in any manner disclose the facts to be proved, and it contradicted the record evidence of the agreement on which all the parties acted. There is not much weight to be attached to such vague and conflicting offers of testimony, especially when the offers are made to •contradict the record of the transaction as made and entered on the books of both banks. On the whole it appears that the case is fairly submitted to the jury, and the verdict is just and right. There should be an end to this long litigation. Judgment affirmed.