Kirwan v. United States National Bank

The opinion of the court was delivered by Gilkeson, P. J. : The cause of action set forth in the plaintiffs’ petition is for money had and received ; that the defendant bank had collected the draft mentioned, and failed, neglected and refused to turn the proceeds thereof over to them. This is denied by the [691] defendant in error as one of its defenses, and as a further defense, it claims that it delivered the car of cans in compliance with the letter accompanying the draft, and if there was any mistake made it was an honest mistake on its part, and it was justified in doing as it did under the terms of the instructions given. It is evident that it did not collect the draft as it made a tender of it in court; and we are inclined to the view taken by it with reference to the delivery of the car. The language used in the letter of instructions is susceptible of-two constructions, and, as there is not testimony in this case tending to establish any collusion or bad faith upon the part of the defendant in error, we do not think it should be held liable for an honest mistake which the plaintiffs in error made possible to occur. They had it in their power when choosing the language to make themselves perfectly understood, but failed to do so, and we think it is the universal rule that “in all cases where a written contract is susceptible of two constructions, and a party has acted thereon upon a construction consistent with honest intention and good faith on his part, and the trial court gives such construction thereto, an appellate court will not overturn or set aside the judgment.” And this is particularly true where the written instrument is,in the form of instructions, and the party required to act thereunder had no voice in the making thereof. The language therein being ambiguous, it should be most strongly construed against the maker. In this case the court made a general finding in favor of the defendant, and the rule has been adopted in this state that “where a case is tried by the court, and a general finding is made in favor of the defendants, and no [692] special findings are requested or made, the general finding includes every material fact necessary to sustain a judgment based upon such finding ; and where there is some evidence to support the general finding and judgment, they will not be disturbed by the supreme court.” (Mushrush v. Zarker, 48 Kan. 382.) And there is not only some evidence to support the general findings in this case, but the evidence strongly supports every material fact necessary to be found in this case to sustain the judgment. But, on examination of the issues presented by the plaintiffs’ petition, we are compelled to affirm this judgment. The cause of action set out therein, as we have said, is for money had and received, yet the plaintiffs failed to show by any evidence that the defendant collected the sum of $862.95, the amount of the draft they claim it had refused to turn over, but retained it to its own use. There is an absolute failure of evidence to support this allegation of the petition, and the question therefore presented to us is not one of the parties’ rights upon evidence, but ujoon evidence within the issue. The most favorable construction that could be placed upon the plaintiffs’ pleadings in this case would be to say tha.t the petition presented a claim of liability upon two counts: (1) That the defendant collected the sum of $862.95, which it refused to turn over to the plaintiffs and retained to its own use ; and (2) that the defendant refused to return the bill of lading or account for the car-load of cans, reasonably worth the sum of $862.95, the market value thereof. The first claimed ground of liability was, upon the' testimony, or rather upon the lack of testimony, decided adversely to the plaintiffs, and therefore settled, and the second claimed ground of recovery, viz., the refusal to return the bill of lading or account for the cans, was abandoned by them, if they ever considered it as a [693] ground of recovery. There is not a syllable of testimony as to the market value of the cans, nor is there any showing of the value of the bill of lading. There is, then, a total failure of proof on every material allegation necessary to support this ground of recovery, and a failure of proof (even under the liberal construction of the pleadings) of every material fact in this case, and this failure is fatal. “A party can allege one thing and support it by proof of an entirely different state of facts.” (U. P. Rly. Co. v. Young, 8 Kan. 658.) The judgment in this case will be affirmed. All the Judges concurring.