Bachhuber v. Rundhammer
Bachhuber v. Rundhammer
Opinion of the Court
We are persuaded that the respondent bank is not liable to the trust because the trust and its new trustee are estopped from complaining.
There are two different bases upon which we hold that the trust is subject to an estoppel. First, the trust is in no position to complain because its trustee (the predecessor of the present trustee, Mr. Bachhuber) was responsible for the loss incurred by the trust. It was Mr. Rundhammer, the predecessor trustee, who had authority to write checks on the trust account; he, himself, drew and endorsed the checks which are the basis of this action. If forgery or any other misconduct was involved, it was the acts of the original trustee himself which caused such loss. Sec. 116.27, Stats.; Huber Glass Co. v. First Nat. Bank of Kenosha (1965), 29 Wis. (2d) 106, 138 N. W. (2d) 157; Wussow v. Badger State Bank (1931), 204 Wis. 467, 470, 234 N. W. 720.
The fact that there is now a successor trustee does not relieve the trust of the onus which resulted from the previous trustee’s acts. At the time the trustee performed those acts, he was the sole trustee, and the bank had no reason to question his actions in relation to the trust.
The two checks in question designated Mrs. Rund-hammer as payee, and it is clear that she ultimately received the proceeds which were placed into the Rund-hammers’ joint account. Mrs. Rundhammer wrote checks over her own signature, withdrawing the same amount which is now claimed as a deficiency in the trust account by the trustee. Such withdrawals were made by Mrs. Rundhammer within a short time after the questionable deposits were made. Thus, it is apparent from the record that despite the claim of a forged endorsement of Mrs. Rundhammer’s signature, the funds represented by such checks actually reached her. This fact results in an estoppel upon the trust from contending that it was wronged when the bank charged the trust account for the two checks payable to Mrs. Rundhammer.
The learned trial judge concluded that the two checks which were payable to Mrs. Rundhammer were not actually designed to give her an interest therein. Thus, it was determined in the trial court that under sec. 116.13(3), Stats., these were not order checks but, on the contrary, were bearer paper. While we fully agree with the result reached below, we are unable to reach such result under sec. 116.13 (3).
While it may often be difficult to determine whether the maker of a check actually intended another person to
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Bachhuber, Special Trustee, and v. Rundhammer, Defendant: First American National Bank, and
- Status
- Published