64 Ind. App. 632 | Ind. Ct. App. | 1917
Complaint on certificate of deposit. Answer in three paragraphs: first, verified general denial; second, no consideration; third, gahibling transaction with an illegal consideration, and in violation of certain statutes of the state of Illinois. Demurrer to third paragraph of answer overruled. Reply in’ denial. Special finding of facts, conclusions of law thereon, and judgment accordingly.
The finding of facts and conclusions of law thereon are as follows: -“The court, having been requested to find the facts in writing in this cause, and state the conclusion of law thereon, finds the facts as follows: First, the plaintiff in this action is a corporation duly organized and doing business under the laws of the state of Illinois; that it was organized on the 13th day of July, 1911, and began doing business August the 1st, 1911, with its office and principal place of' business located in the city of Chicago, in the state of Illinois; that it was engaged in the business of buying and selling grain, produce and provisions, as brokers for others on commission, and also buying, receiving and selling grain and produce; that ever since its organization one Adolph Kempner has been ‘the president and acting manager of its business; that prior to the time of its organization, said Adolph Kempner for a number of years had been engaged in the said business as a broker and commission merchant, operating and doing business under the firm name and style of Adolph Kempner & Co.; that said Adolph Kempner, as Adolph Kempner & Company, retired from said brokerage business as an individual on August -the 1st, 1911.
“Second, that the defendant herein was, prior to November the 4th, 1911, á private’banking institution duly organized and doing business under the laws of the state of Indiana; that it was organized and began doing business in 1903, and subsequently complied with the
“Third, that for some months prior to October, 1911, said Adolph Kempner was acquainted with said Howard B. Harter, and during all said time knew that' said Howard B. Harter was cashier of the defendant bank, and had charge of its business affairs, and that during that time said Adolph Kempne'r, under the firm name and style of Adolph Kempner & Company, and Adolph Kempner Company by their said Adolph Kempner acted as agent and broker for said Howard B. Harter in the-purchase and sale of grain and produce on the Chicago Board of Trade; and on the 12th day of October, 1911,' said Howard B. Harter ordered and directed said plain-, tiff as his agent to purchase for him on the Chicago Board of Trade 800,000 bushels of December wheat, meaning thereby wheat for delivery during the month of December, 1911; that said wheat was to be purchased at the price of one dollar a bushel and said plaintiff in obedience to said order did on the 27th day of October, 1911, purchase said 300,000 bushels of wheat on the Chicago Board of Trade at the price of one dollar a bushel, and notified said Howard B. Harter thereof; that at the time said order was given said Howard B. Harter sent to the plaintiff his two checks for $3,000.00 each on the defendant bank herein; that on the 27th day of October, 1911, the said plaintiff demanded from said Howard B. Harter an additional sum of $3,000.00 for security over and above the checks aforesaid and thereupon said Howard B. Harter sent to the plaintiff his check for said sum on the defendant bank herein, payable to said plaintiff; that the plaintiff, on the receipt of said check on October the 28th, 1911, forwarded the same for collection to the defendant bank therein; that the said Citizens Bank of Akron, Indiana, by and through the said Howard B. Harter received
“ ‘Citizens Bank, Akron, Indiana, No. 7927, October 31st, 1911, .............., 191... Adolph Kempner Company has deposited in this bank three thousand .............. dollars, $3,000.00, payable to the order of themselves on the return of this certificate. H. Harter’.
“This deposit is not subject to check. (Written across the face.) Not over $3,000.00.
“That said certificate was by the plaintiff deposited in the Chicago Savings Bank and Trust Company, and by said bank was sent to the Fletcher American Bank, Indianapolis, Indiana, which in turn presented it in payment to the defendant, which payment was by the defendant refused and on November the 3rd, 1911, said certificate was duly protested and has not been paid; that at the time said Howard B. Harter executed said check in lieu of which said certificate was issued, said Howard B. Harter did not have on deposit in said defendant bank said $3,000.00 nor any part thereof, nor has he since said time had on deposit any money in said defendant bank; that said certificate of deposit was executed without the knowledge or consent of any officer, director or stockholder of said defendant bank other than said Howard B. Harter, and was issued without any other or different consideration than said check of Howard B. Harter; that said plaintiff did not at said time deposit in said bank said $3,000.00 nor any part thereof, nor has- it since said time deposited any money therein in lieu thereof; that at the time said Howard B. Harter issued said check as aforesaid, the same was done without the knowledge or consent of any officer, director or stockholder of said bank other than himself ; that no officer, director or stockholder of said bank,
“Fourth, that at the time said .plaintiff bought said 300,000 bushels of wheat for said Howard B. Harter, it was not expected nor intended by said plaintiff or said Howard B. Harter that delivery of said wheat would be asked for or made to said Howard B. Harter, but that the profit or loss thereof would be settled at the difference in market price of said wheat at or prior to the date when delivery thereof might be asked; that said plaintiff had no interest in said contract other than as brokers and agents for said Howard B. Harter.
“That during the year 1911, and while the plaintiff and said Howard B. Harter were having and carrying on the transactions as set out in finding Nos. 3, 4, and 5, there was in force in the State of Illinois, the following statutes, to-wit:
“ ‘Whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity, stock of any railroad, or other company, or gold - or forestalls the market by spreading false rumors to influence the price of' the
“ ‘All promises, notes, bonds, covenants, contracts, agreements,' judgments, mortgages or other securities or conveyances made, given, granted, drawn or entered into or executed by any person whatsoever, where the whole or any part of the consideration thereof, shall be for any money, property, or other valuable thing, won by any ‘gaming or playing at. cards, dice, or any other game or games, or upon any race, fight, pastime, sport, lot, chance, casualty, election on unknown or contingent event whatever or for the reimbursing or paying any money or property knowingly lent or so gaming or betting or that shall during such play or betting so play or bet, shall be void and of no effect.’
“And the court now states its conclusions of law on the foregoing facts that the law is with the defendant, and that the plaintiff ought not to recover, and the defendant recovers cost herein.”
The only errors assigned which this court can recognize are the following: The second, that the court erred in overruling the demurrer to the third paragraph of answer; the third, that the court erred in its conclusions of law; the fourth, that the court erred in overruling the motion for a new trial.
Judgment affirmed.
Note. — Reported in 116 N. E. 440. Banks and banking: liability of bank on certificate of deposit, 75 Am. St. 58; parol evidence affecting signature of bank official, 17 Cyc 710; individual' interest of cashier in transaction, 7 C. J. 552.