180 Ind. 649 | Ind. | 1913
Action by appellee against appellant. The first paragraph of complaint alleges an indebtedness of $24,000, for money had and received, while the second is for an accounting under an alleged oral agreement by the terms of which appellant promised to invest appellee’s funds in loans secured by first mortgage on real estate. Appellant answered in three paragraphs, the first of which was a general denial, and the second a plea of payment. The third alleges that when appellant received the various sums for which it became indebted to appellee she was credited therefor on a bank book, which was delivered to her each time a credit was entered, which book was retained by her as an evidence of such credits; that at various times appellee drew out sums of money, by cheeks drawn by her, on appellant, or otherwise, as ordered by appellee; that often, before the bringing of the suit, the bank book was delivered by appellee to appellant, for the purpose of having charged
The special finding was based on the first paragraph of complaint, and states, among other things, that appellant was organized under the United States banking laws, and began a general banking business at Tipton in 1902, from which time, until July 26, 1909, its officers were Elbert W. Shirk, president, Nannie R. Shirk, vice-president, William EL Marker, cashier, and Noah R. Marker, assistant cashier; that it suspended, July 26, 1909, but resumed business on August 13, 1909, with George Shortle as cashier and John E. Shirk as assistant cashier; that since its organization appellee has had a deposit and checking account with it; that on November 25, 1908, appellee had on deposit the sum of $9,860.89, when William EL Marker, cashier, executed the following check against such account: ‘ ‘ Tipton, End., Nov. 25, 1908. Pay to the order of loan from, bank,
"Tipton, Indiana, May 22, 1909.
Received of Mrs. Sarah C. Peck, the sum of seventeen thousand dollars ($17,000) the same to be loaned by the First National Bank on such security and notes that would he satisfactory to said bank, and, as interest on said loans is paid, it is to be credited to the account of Mrs. Peck. First National Bank, By W. H. Marker, Cashier. ”;
that appellee did not have said amount on deposit, but the writing was executed for the purpose of deceiving appellee in regard to her account, and she was deceived and misled thereby; that for the purpose of misleading and deceiving appellee, appellant entered on appellee’s pass book, on November 25, 1908, a statement that said $7,000 cheek was given for a loan made to S. G. Young, when in fact no loan was made, but appellee believed the statement entered in her book to be true, and was misled thereby; that appellee reposed great confidence in the bank, and its cashier, and when loans were made for her on short time notes, she did not demand an inspection thereof, or take them into her own possession; that it had been the custom to keep her notes in the bank, in a separate receptacle, for collection, by the bank, of principal and interest thereon; that on December 21, 1908 appellee’s bank book was balanced, showing that there was charged against her the $7,000 check, of November 25, 1908, but by reason of said confidence, and said statement, she believed that a loan
Appellant claims that because the reply to appellant’s ■ third paragraph of answer was only a general denial, facts in the findings showing fraud or mistake should be disre
10.
There is no error in the record except as to the amount of recovery, which is excessive in the sum of $277.67. If appellee, within 30 days, shall remit said excess, the judgment will be affirmed, otherwise the same will he reversed for such error.