LePorin v. State Exchange Bank

215 P. 318, 113 Kan. 428, 1923 Kan. LEXIS 121

Opinions

The opinion of the court was delivered by

Hopkins, J.:

A petition for rehearing has been filed by plaintiffs in which they contend that the letter releasing the escrow was not before the trial court when it considered the demurrer to plaintiffs’ evidence and should not have been considered by this court. The letter was an exhibit to defendant’s answer to which plaintiffs had filed a verified reply. Plaintiffs gave this letter extensive consideration in their original brief filed in this court. In referring to it they used this language:

“In this statement, however, the attorney for the defendant introduced an agreement in the form of a letter and an acceptance by C. J. Skirvin, H. D. Mollohan and Walter Grundy. By this writing it appears that on October 30th, 1919, the defendant, The State Exchange Bank, wrote! a letter to C. J. Skirvin, Wichita, Kansas, reciting that the bank was an escrow holder,” etc.

A large part of plaintiffs’ brief was devoted to a discussion of the bank’s alleged liability because of the terms of this letter. Under the head “Points Relied Upon” plaintiffs made four assignments, in each of which they referred to and treated the letter as part of the evidence and sought relief thereon. The petition for rehearing states that the reference to the letter was an inadvertence on the part of counsel and that plaintiffs should not be bound thereby. We are unable to see how plaintiffs’ new contention could change the final result. The question was on a demurrer to plaintiffs’ evidence. Even if the letter was not before the trial court in considering the demurrer, plaintiffs failed to make a case. They failed to show that the defendant bank had any knowledge of the interest of the assignee at the time of the release of the escrow. This was essential to a recovery. They also failed to show damages in any amount. There are cases where an escrow holder wrongfully releases an escrow, and, in order to recover, it is not necessary to prove the amount of damages ; but the circumstances in this case would not justify the application of such a rule. We have'given careful consideration to all the propositions raised by plaintiffs but find nothing that would warrant a resubmission of the case. The application for a rehearing is denied.