Comanche State Bank v. Watkins et al.

deed was of very little value, and that Watkins was compelled to pay about $4,000 in order to acquire a good title to the property, and he used practically $2,400 of the money deposited in the bank and about $1,500 of his own money to procure a good title to this land, and that after these things had been done, he demanded from the bank the balance of this money, which it refused to pay to him for the reason that it claimed that Watkins had stated, at one time prior thereto, that he had no interest in the money thus left in its possession, and that it had applied the same to a note due to it by Vaught, and for that reason it refused to pay to Watkins the money sued for in this action, to wit, about $604.

It is apparent from the contract between the parties that this money was deposited in the bank for a certain, definite, and fixed purpose. Under the contract no discretion was vested in the bank to determine anything, nor was it to be called upon to decide at any time any question for the parties to the contract. Its only duty was to hold the money and to pay the same out, as Watkins directed, for the purpose of procuring a title to this property. Vaught had no interest in the money, nor any right to any part of it, until the title had been perfected and approved by Watkins, and the money necessary to perfect the title was to be deducted from the sum deposited with the bank, and Vaught's only interest was to be determined by deducting from the amount deposited the sum paid out for the purpose of quieting or perfecting the title to the property, and if any remained, the same belonged to Vaught. The undisputed evidence is that Watkins paid practically $4,000 to perfect this title, which was more than was left in escrow with the bank, and that in paying

Opinion of the Court.

this $4,000 he used $2,400 of the money deposited and $1,500 or more of his own money. Clearly, under the contract and the evidence, Vaught was not entitled to any of the money deposited with the bank, as it required under this evidence more than this sum to perfect the title to the property, and it follows that if Vaught was not entitled to this balance in the bank, or if the bank could not have paid the same to Vaught under the contract as due to him, the bank could not apply it to a debt due it by Vaught. If the bank had paid the money to Vaught, it would have violated its duty, and would have been liable to Watkins therefor unless it had done so at his request.

Under this evidence this money was due to Watkins, and, considering fully the conversation claimed to have been had with Watkins by the officer of the bank in the presence of the witness Bristow, which is vague and uncertain, we cannot see how the bank can justify itself in applying the same to the satisfaction of a debt due it by Vaught, as the same is not supported by any consideration whatever, and cannot be considered as a direction, and by no means a consent. Neither this testimony, nor any inferences that could be drawn from it, can justify the bank in retaining the money, and there is no element of estoppel in this case. The bank has violated its duty, and should not be permitted, under the facts of this case, to violate its trust by applying this trust money to satisfy the debt of Vaught to it.

We therefore recommend that the judgment of the lower court be affirmed.

By the Court: It is so ordered.

Wichita Falls & N. W. Ry. Co. v. Arnold.

WICHITA FALLS & N. W. RY. CO. v. ARNOLD.

No. 6049. Opinion Filed March 14, 1916.

(156 Pac. 296.)

RAILROADS Fire-Proof of Origin-Circumstantial Evidence. The fact that a fire which destroyed property originated from the sparks of a passing locomotive may be shown by circumstantial evidence.

(Syllabus by Rittenhouse, C.)

Error from County Court, Jackson County;

J. M. Williams, Judge.

Action by V. M. Arnold against the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Robinson & Hamilton, for plaintiff in error.

M. L. Hankins, for defendant in error.

Opinion by RITTENHOUSE, C. This action was commenced for the purpose of recovering damages occasioned by the destruction of 25 acres of pasture and certain fence posts belonging to V. M. Arnold, plaintiff herein, which, it is alleged, were destroyed by fire through the negligence of the railway company in allowing sparks to emit from its locomotive, causing said fire. The case was tried to a jury, resulting in a judgment for plaintiff.

It is insisted that this cause be reversed because the verdict is not sustained by sufficient evidence. It was shown at the trial that the premises were adjacent to the right of way; that on February 13, 1913, at about 12 o'clock noon, a train belonging to the defendant company

Opinion of the Court.

passed these premises; that at this particular point there is a heavy grade; that immediately after the passage of the locomotive which was pulling such train the fire was discovered in a field of inflammable vegetation adjacent to the right of way, traveling before the wind in a direction. away from the right of way and towards plaintiff's house; that on previous occasions similar locomotives had emitted sparks, setting fire to the grass on these premises.

It is obvious that, if the plaintiff recovers in this case, it must be upon circumstantial evidence, as no one saw sparks emit from the locomotive or saw the commencement of the fire. It is our opinion that it is not necessary that there be direct evidence showing that sparks emitted from the locomotive and started the fire, as it is the province of the jury to draw the inference from the circumstances surrounding the commencement of the fire as to whether it was caused by sparks emitting from the locomotive belonging to the company, and the circumstances in the instant case are sufficient for the jury to draw such inference.

It was held in St. L. & S. F. R. Co. v. Shannon, 25 Okla. 754, 108 Pac. 401, 21 Ann. Cas. 1209, that it may be shown by circumstantial evidence that a fire was started by sparks from a passing locomotive; and in support thereof are cited the cases of Kansas City, F. S. & M. R. R. Co. v. Blaker & Co., 68 Kan. 244, 75 Pac. 71, 64 L. R. A. 81, 1 Ann. Cas. 883, and Kansas City, F. S. & M. R. R. Co. v. Parry, 65 Kan. 792, 70 Pac. 876. In the latter case it was held:

"The fact that soon after the passing of an engine a fire starts near a railway track in an inclosed field cov

Bank of Meeker v. Lokey.

ered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins."

It is next urged that the court erred in instructing the jury on the measure of damages. There is no contention that the judgment is excessive, and from an examination of the record we are satisfied that the error, if any, as to the measure of damages is harmless. Plainters' Cotton & Ginning Co. v. Penny, 53 Okla. 136, 155 Pac. 516. The judgment should therefore be affirmed. By the Court: It is so ordered.

BANK OF MEEKER v. LOKEY.

No. 6080.

Opinion Filed March 14, 1916.

(155 Pac. 1118.)

Error from County Court, Lincoln County;

H. M. Jarrett, Judge.

Action by R. R. Lokey against the Bank of Meeker, Okla., a corporation. Judgment for plaintiff, and defendant brings error.

Dismissed.

Hoffman & Foster, for plaintiff in error.

Wagoner & Harris, for defendant in error.