93 Iowa 789 | Iowa | 1894
The plaintiff is the receiver of the Osceola Bank, and he brings this suit against the defendant to recover a sum of money which he claims the defendant had received from the bank, and which was charged to the defendant on the books of the bank as an overdraft. The defendant denies that he had and received any money from the bank, and avers that he closed his account with it on the eighth day of November, 1887. and that since that time he has neither kept nor authorized any one to keep an account for him with the bank. He denies having received any money from the bank after that date, except in the form of drafts issued by said bank, to persons who owed him, who may have purchased drafts of the bank in the customary manner. Denies any overdraft from the bank. Admits there appears upon the bank books an account against him, but denies the bank had any authority to make either the charges or credits appearing thereon. He avers that on November 11, 1887, one George H. Cowles was indebted to him as maker and guarantor upon a large amount of paper, and that the bank was also largely indebted to him upon notes which he had purchased of the bank,
The facts in the case are not seriously in dispute. The difficulties lie in the inferences to be drawn from these facts, and in the application of the law thereto. It is conceded by all parties that prior to about November 21, 1888, a corporation known as the Osceola Bank was doing a general banking business in the town of Osceola, with John W. Richards its president, George H. Cowles its vice president, and C. H. Currier its cashier. Cowles was the active business manager of the bank, and was also quite largely engaged in other business. Richards had but little to do with the active management of the bank. The defendant, Seth W. Richards, is a man of large means, and prior to November 8, 1887, had had an account with the bank, his balance being at all times quite large. John W. Richards acted as agent in the transaction of his business. On the thirty-first day of October, 1887, defendant revoked the agency of John W. Richards, and on November eighth closed his account with the bank, the bank sending him a draft for the balance to his credit at that time. Prior to the time he closed his account with the bank he had discounted a large amount of paper for Cowles individually and for the bank. About the twenty-second day of November, 1886, he discounted for the bank a large number of notes known as the “Canny sale notes,” which the bank guarantied, and agreed to repurchase after eleven months from date. During the year .1887 the defendant also rediscounted for the bank a note of E. W. Bingman & Son for the sum of five thousand and four dollars, and another note of one Eowler for the sum of three thousand nine hundred and
“Osceola Bank of Geo. H. Cowles. Osceola, Iowa, Nov. 11th, 1887. Seth Richards, Esq.., Ottumwa — Dear Sir: John Richards shows me your letter of‘the 9th, saying you want same money. Inclosed I hand you draft for one thousand five hundred dollars, which I debit you on account. You may send us the following notes, and we will give you credit:
“We also credit you $200.64, which indorse on E. W. Bingman & Co. note, $5,004.01, due Nov. 23, ’87. I am looking for $1,000 to be*792 paid on Fowler note, $3,900.69, most any day. The Mason note I would like to have you carry till spring, as Mason is feeding cattle. He is one of the best men in the country, financially. These are some of these parties whose notes' you had that I want to collect up at once, and some that have got to be carried along and collected as the parties can turn things; and I would like you to carry them. I will have some interest on those individual notes of mine to credit you soon. You will please write me soon, and let me know where I can' find the paper when you go back to California. Would also like the privilege of using some discretion about forcing folks to pay, etc. Yours, (Signed) Geo. H. Cowles.”
We have set out this letter in full, because of its imxiortance in the case. Inclosed with the letter was a draft in the usual form for the sum of one thousand five hundred dollars, issued.by the Osceola Bank on its Chicago correspondent, payable to defendant.
The first series of notes referred to in this letter are the Canny sale notes. The Bingman, Fowler, and Mason notes were redis-counted by defendant for the bank, and guarantied by it. At the time the one thousand five hundred dollar-draft was issued, George H. Cowles had no funds in the bank. He paid nothing for the draft, and the draft was neither issued to nor charged against him by the bank. It was, however, charged to the defendant upon the bank books, and on the same day he was credited with the sum of two hundred dollars and sixty-four cents, which was paid to the bank upon the Bingman ¡sote by the makers thereof. Thereafter defendant was charged with interest on monthly balances, and credited with amounts paid to the bank upon notes which it had rediscounted to defendant, and at the time the bank passed into the hands of the plaintiff as receiver the account showed aggregate debits against defendant of one thousand five hundred and fifty-nine dollars and thirty-six cents, and credits in the sum of one thousand two hundred and forty-seven dollars and seventy cents, leaving a balance due the bank, as shown by its account, in the sum of three hundred and eleven dollars and sixty-six cents. Defendant, in his answer, repudiated credits on this account of amount paid on Bog-g’s note October 13, 1888, to-wit, three hundred and sixty-tliree dollars and one cent, and of amount paid on Dipperman note, December 6, 1887, with interest, in all one hundred and eight dollars, and thereupon plaintiff asked to recover not only the balance before stated to bo due on the account, but the amount of these repudiated credits as well. Upon receipt of the letter set out above the defendant directed the Ottumwa Bank to forward to the Osceola Bank the Canny sale notes, amounting to six hundred and seventy-two dollars and sixty-five cents, the same having evidently been repurchased by the Osceola Bank under its option. And defendant also gave credit upon the Bingman note as requested. The balance, remaining of the one thousand five hundred dollars the defendant
Exhibit E: “Osceola, Iowa, Dec. 22nd, 1887. Seth Biehards, Esq., Oakland, Califoma — Dear Sir: So far I have not been able to make the remittances that you requested. In fact I was very much surprised that you should ask it, as I went to Ottumwa to see you about these matters, and you told me you did not want the money; and I am not prepared to pay it. In fact the $4,000.00 note is not due until spring, and you told me, by paying up the interest, which was all you wanted, the others could run, as I presumed', another year.' Soon after I came home, you sent up the Mason note, saying you needed some money. Mason could not pay then, and think, to accommodate you, I sent you a draft for $1,500.00, and requested yon to apply $200.04 on E. W. Bingman & Co. note, and send the bank here the following notes, with which I would give you credit, viz.:
*794 Michael Cronin .$ 98 70
J. and C. T. Ayres. 7 00
Alonzo and Robert Adams.. 85 00
J. J. and A. M. Baker. 20 00
Frank D. and W. K. Blakely. 27 00
G. W. Bevans . 126 00
W. S. Cline. 50 00
Henry J. Dipperman. 26 95
W. J. Hamilton..•. 58 50
Michael Meany .50 00
F. M. Rife . 15 50
Henry Twyford .. 45 00
Andrew Welch . 63 00
$672 45
‘T charged you with the $1,500.00, and credited you with the payment on Bingman & Go. note, $200.64, and intended to credit you with these others as soon as (hey came, and then settle the interest on my note that was due this fall, and pay up the interest on W. C. Needles & Co. note, and give you credit. That would probably leave a small balance due you, which 1 would have the bank remit to you. W. C. Needles & Co. note 1 can’t well pay till I can close that business, and so explained to you at Ottumwa. I am in hopes to do that soon. 1 have delayed writing you some days, as I thought may be I could send you the money, but money in Iowa is very close, and banks all around are very close up. 1 will embrace the first opportunity to borrow the money elsewhere, and pay you off. X trust this will be satisfactory to you. 2 ours, truly, Geo. H. Cowles.”
This is the substance of testimony as we gather it from the 'record, and, as applicable thereto, the court in effect instructed the jury that they must determine therefrom, and from all the evidence, whether the transaction with reference to the one thousand five hundred dollar-draft was one between the defendant and the bank, and such a one as would authorize the bank to make the charges against defendant that it did, or whether it was a transaction betweeen George XI. Cowles individually and the defendant; that, if it was the former, plaintiff might recover the balance due; if the latter, he could not. The jury evidently found that the transaction was one between the bank and defendant, and that the bank was authorized to charge the defendant with the amount of the draft. In answer to interrogatories submitted to them, the jury found'special y that defendant borrowed the one thousand five hundred dollars in question from the Osceola Bank by overdraft; that in accepting and receiving the draft defendant was dealing with the bank, and not with Cowles individually; and that the bank made the charge against defendant on its books with his knowledge or consent, or with the knowledge and consent of his agent.
Defendant has cited us a number of authorities to the effect that the defendant had the right to presume that the bank had received value received for the draft, and that, it was issued for a valuable consideration passing to it from Cowles, or from the person to whom it was issued, and that he was not bound to take notice that the bank had charged the same to him. That the draft was like a certified check in this: that, as the bank could not be heard to say that it had no funds of the maker of a certified check in its possession, no more can it be permitted to deny that it received the money for the draft. No doubt the law is as counsel state it, and, did this case rest upon the draft alone, there would be much force in his position. But plaintiff does not rely upon the draft aione. He bases his right to recover upon the transactions environing the delivery of the draft, which we have heretofore set out.
II. Complaint is made of the rulings of the court in the admission and rejection of testimony, and of his refusal to give certain instructions asked by defendant. In so far as these assignments are of any importance, they are covered by what we have already said, and we see no error therein.. The instructions asked, in so far as they were correct, were given by the court. The instructions given covered the issues presented by the pleadings fairly and clearly, and were not erroneous.
III. Lastly, it is insisted that the general verdict is excessive. The amount found due by the jury was nine hundred and seventy-seven dollars and ninety-three cents. But plaintiff remitted all in' excess of eight hundred and seventy-five dollars and twenty cents, and judgment was rendered for the last-named amount. Defendant claims the account should be stated in this wise: Defendant debtor to amount of draft, one thousand five hundred dollars. Credit by amount of Canny sale notes, six hundred and seventy-two dollars and forty-five cents; by amount paid on Bingman note, two hundred dollars and sixty-four cents; total, eight hundred and seventy-three