23 Iowa 185 | Iowa | 1867
To set forth in detail the facts contained in this voluminous record, would most needlessly extend this opinion. We shall, therefore, briefly dispose of the several legal questions involved, referring only to such facts as seem to be necessary to their proper understanding.
The cashier, after inquiry, directed notice of the dishonor to the former place, which is about one mile from Iowa Falls. It seems that the posboffice at Rocksylvania had been discontinued, and its business transferred to Iowa Falls, so that letters directed to the former, were received at and distributed from the latter. There was also much testimony tending to show that the drawer had waived any want of notice; that the drawer and acceptor were partners; that the former took indemnity, etc., but of the effect of such testimony in the case, we do not propose to inquire, as we are of the opinion that there was due presentment and notice.
The presentment by the cashier for the bank, at the counter, to the paying teller, after business hours, was sufficient. 1 Parsons on Notes and Bills, 418, 419, and notes; Garrett v. Woodcock, 6 M. & S. 44; Bank of Syracuse v. Hollister, 17 N. Y. 48; Bank of Utica v. Smith, 18 Johns. 230. This is upon the- hypothesis that the bank, owning a note payable at its counter’, was bound to make presentment, a question we neither consider nor decide.
Owen was in partnership with Daniel and Isaac R. Andrews in the purchase of wool. The instrument now in suit was given in place of one made in November, prior, for money loaned to invest in their business. To secure it in part, the bank held the warehouseman’s receipts for the wool purchased by the firm. This wool was sold in New York, and the proceeds, $2,849.23, received by the bank, July 27th, 1865, and duly credited. Some little, attempt is made to show that the wool might have been sold for more, or that defendants should have received a larger credit. Nothing is disclosed, however, to charge any one, beyond this amount, and least of all the plaintiff. This may, therefore, be taken as the true and correct amount. And the same is true as to the only other credits on the bill, $1,586.35, Nov. 13, 1865, proceeds of sheep sold by the plaintiff; and $50, Dec. 8, 1865, for lambs sold.
At the time the bill was drawn, Daniel Andrews made a mortgage to secure the same on “ five hundred sheep ” afterward sold, and the proceeds applied as above. At this time and, indeed, in the fall previous, Owen ceased to be a partner with Andrews. The latter was to pay
There was a prior mortgage on this farm to one Stanley, as to which there is no controversy, and to which we shall hereafter refer.
McLane & Booze, of Ohio, also had a mortgage on the farm, of date Sept. 2, 1861, to secure the covenants and agreements that day made and entered into between the parties, for the sale and delivery by the mortgagees to Andrews of 513 head of sheep. McLane & Booze sold this contract and mortgage to Boardman in July, 1865. Some days afterward, in September, he sold the same to the bank; but there was no assignment in writing or actual transfer until about the 9th of October. September 26, Andrews, being on his death bed, sent for two of the bank officers and without solicitation, as far. as it appears, made to one of them an absolute deed for his farm, and took a brief memorandum to the effect that it was to be' sold and the proceeds applied to this debt after paying prior mortgages; and the surplus, if any, was to go to the grantor or his heirs. Andrews departed this life on the 28th, the farm was sold, and on the 28th of July, 1866, the bank realized for it $1,600.
With this brief srimmary of this most complicated transaction, we come to the matters of disagreement: First. The bank says that the party holding the title to the farm, and selling the same, was entitled to a commission or compensation for making such sale ($269.50), and that this should be deducted from the amount for which it sold. In this view we do not concur. A fair
There was, at the time, no such trust relation as prohibited the purchase. The bank had then no money of Andrews’, but he was largely its debtor. Nor, within any equitable rule, coiild the mortgagor, or any one in privity with him, or interested in his property, claim that the purchase was for his benefit. It was bought in good
We concede that there are some circumstances which favor the proposition that plaintiff should receive no more than the amount paid, -with interest.
These are, however, more than outweighed by others in connection with the positive testimony of witnesses, explaining the whole transaction.
If the bank had been fully advised in the transaction, we do not see what equitable rule would make it incumbent upon its officers, to compel its diversion or control its application to the payment of this debt, more than any other.
As between Owen and the bank, there was no violation of good faith. The bank endeavored to have Andrews thus apply it; he refused; and this was all that Owen could possibly ask, and especially as he knew the debt unpaid, that' there was a clip of that year, and took no steps to see to its application. The balance, however, not drawn out, $256.80, was not appropriated by either party, and it is equitable in our view as the defendants now ask it, that this should be applied on the debt for which plaintiff now sues. If the bank had actually applied it to the judgment, a different question would arise.
We have thus noticed the several controverted items, and find the transaction to stand thus:
*198 1. As to the farm.
February 1, 1866.
The bank received for this,................ $4600 00
From this is to be deducted Stanley mortgage,................■ $754 21
Taxes,........................ 77 18
Perfecting title,................ 35 00
For stamps and conveyancing,... 4 35
McLane & Booze mortgage,..... 2369 00
The wool from the.543 sheep for 1865, as per contract,......... 543 00 •
Interest on this from July 1,1865, to February 28, 1866,.. ."...... -21 60
Allow at the same rate for eight months or from July 1, 1865, to February 28, 1866, two-thirds of a year,................... 362 00
$4166 34
Leaving balance against the bank of,................................... 433 66
2. Bill of exchange,................ $7430 55
Protest fees,........'..................... 2 30
July 27, 1865.
Interest from May 15,.................... 89 OS
Deduct N. Y. wool,............ $2849 23
Also balance in hands of bank on clip of 1865,................■. 236 80
$3086 03
November 13.
Interest on balance,...................... $79 10
Deduct’ sheep,.................' $1586 35
December 8.
Interest on balance,'...................... 12 20
Deduct lambs sold,............. 50 00
*199 February 28, 1866.
Interest on balance,...................... 38 53
Deduct balancé on farm,........ 433 66
$5156 04 $7651 76
Leaving a balance of $2495.72, for which, with interest from, February 28, 1866, at six per cent, plaintiff will be entitled to judgment against both defendants. The cause will be remanded, that judgment may be entered in the court below accordingly, defendant Owen paying one-half, and the.plaintiff and the other defendant each one-fourth of the costs of this appeal.,
Reversed as to the appeal of plaintiff and that of defendant Andrews, arid affirmed as to the appeal of defendant Owen.