193 Iowa 833 | Iowa | 1922
— The petition states that, in the years 1918 and 1919, plaintiff subscribed and paid to the defendant bank the sum of $1,711.25 for Liberty Bonds of the United States of the face value of $1,700. It is further alleged that since said payment or deposit plaintiff has demanded from defendant a delivery of the bonds so subscribed' for, or a return of the money paid for that purpose; but that defendant has failed and neglected to comply with said demand, asserting that it did in fact purchase the bonds and hold them for plaintiff, but that the same have been lost or stolen. It is further alleged that, if defendant did in fact purchase and receive the bonds, defendant did not advise him of that fact until after the alleged loss of the bonds, and that, if such bonds were in fact so procured, defendant retained the possession thereof at its own risk, and that, if they were lost, the loss occurred' through the negligence of the defendant. Plaintiff still further alleges that the bank held itself out to the plaintiff and to the public as a safe and secure depository, and represented to plaintiff that the deposit with it of said bonds was fully covered by insurance; that defendant advertised to its customers through the public press,
Answering said claim, the defendant admits that it took the plaintiff’s subscription' for said bonds and received the money therefor, and that thereafter in due time it notified plaintiff of the receipt of the bonds and offered to deliver the same to him; but asserts that, at his request, they wer.e left in the possession of the bank. It is further alleged that, on the night of January 13, 1920, the bank was entered by burglars, by whom the vault was broken open and the bonds belonging to the plaintiff were stolen and carried away, and that they have never been recovered.
On the trial below, the fact that plaintiff did subscribe for Liberty Bonds to the face value of $1,700 through the defendant bank, of which he was a customer, was admitted. It was further conceded that he paid the bank therefor in full. As a witness, plaintiff testified that the money so paid was never returned to him, nor were the bonds ever delivered or tendered to him. The testimony on part of the defense was to the effect that, having received the bonds on plaintiff’s account, it exhibited them and offered to deliver them to him, and that at his request they were allowed to remain in the bank. The defendant’s evidence further tended to show that the final payment for the bonds was made about April 11, 1919. The bonds were thereafter placed and kept in a filing ease in the bank vault. The vault was not burglar proof, being made of brick, with a door faced with a quarter inch of steel and fastened with a combination lock. Inside the vault was a steel money safe or chest, with a screw type of door some six inches in thickness and secured by time lock. Certain bonds, among which, it is claimed were those belonging to plaintiff, were kept in a filing case inside the vault, but outside of the steel safe. Other bonds belonging to the bank itself and some belonging to customers were kept in the steel safe. The evidence further tends to show that the bank received and cared for bonds belonging to its customers, and that,
“The First National Bank Bond Service. Should you find it necessary to dispose of your Liberty Bonds, we will pay you the current market price, paying you cash therefor. Or, if you desire to leave your bonds with us for safe-keeping, we will issue you a receipt for them and assume full responsibility. If you have registered bonds to dispose of, remember we are the only bank in town that can certify your signature on same. Cash paid for your matured coupons on presentation. Yours for service in any of your bond 'transactions. We pay you five per cent on time deposits. The First National Bank. ‘Always.’ ”
The trial court excluded this evidence on the objection of the defendant, a ruling to which we shall again refer.
Concerning the alleged burglary and loss of the bonds, defendant’s showing was to the effect that, on the night of January 13, 1919, the bank was entered by persons unknown, who gained access to the vault by burning out the lock upon the vault door, and stole therefrom the bonds, or part of the bonds, including those belonging to plaintiff. The bonds so stolen were those kept in the filing case in the vault, outside of the steel safe. The safe was not broken open, and none of the money or securities kept therein was lost or disturbed. In cleaning up the bank after the burglary, bonds were discovered which appear to have been overlooked by the burglars, to the amount of $8,000. The bank itself lost no bonds.
As above noted, the plaintiff offered in evidence the defendant’s advertised offer of safe-keeping for Liberty Bonds, but defendant’s objection thereto was sustained; and error is assigned upon that ruling. Plaintiff further offered to prove the cashier’s statement to one Butcher, having bonds in the bank, that the bank’s vault was burglarproof and fireproof, and was insured to a large amount. This was also excluded. At the close of the evidence, defendant moved for a directed verdict in its favor. The grounds assigned for the motion are varying forms of the single proposition that the evidence in the case is insufficient to sustain a verdict for the pláintiff. The motion
“We further deny that appellant’s abstract is a complete abstract of the whole record in the case, and we certify that the two abstracts together do not contain all of the evidence offered and received upon the trial of the cause.”
Neither the statute nor the rule requires an abstract to present the record or evidence in its absolute or literal entirety, in order to entitle an appellant to a hearing. Code Section 4118; Vaughn v. Smith & Co., 58 Iowa 553; Tootle, H. & Co. v. Taylor, 64 Iowa 629; Huff v. Farwell, 67 Iowa 298.
The mere general allegation by appellee that the appellant’s abstract does not disclose all the evidence is too general and will not be considered. Kossuth County St. Bank v. Richardson, 132 Iowa 370, 377. The denial, to be of any effect under our
It follows that the appellee’s objection to the sufficiency of the record to enable this court to pass upon the ruling below directing a verdict for the defendant is not well taken; and the question whether plaintiff was entitled to have his claim submitted to the jury is properly before us for decision. The assignment of error upon this ruling will now be considered.
In the case now before us, the plaintiff does not rely solely upon the presumption arising from defendant’s failure to redeliver the bonds, but offers evidence of facts and circumstances tending- to show want of due care by the bailee; and it is his contention that the evidence as a whole, when given its most favorable construction in support of his claim, presents a question of fact, upon which he was entitled to go to the jury. A careful review of the entire record forces us to the conclusion that appellant’s assignment of error upon the ruling of the court at this point, sustaining* the defendant’s demand for a directed verdict, is well taken, and that the motion should have been denied. That the case, even as made and relied upon by defendant, is one between bailor and bailee, cannot be doubted. We shall not take time for any prolonged discussion upon the classification of bailments. There is no presumption that this bailment was gratuitous, and there is no evidence on that subject, unless it be an inference drawn from some of the testimony that nothing was said between the parties upon the matter of compensation. If any inference upon the subject is to be indulged in, it may well be of the character spoken of by us in the Sherwood case, where it is said that:
"An institution whose avowed object is to make money cannot be assumed to pursue the business of receiving such deposits save for some anticipated advantage to itself, and the drawing or retaining a paying business furnishes as good a reason as though direct compensation were required.”
In other words, the taking and holding of such deposits by a bank for its 'customers is a transaction to the mutual advantage of the bailor and bailee, and not solely a matter of mere accommodation to the former. For the purposes of this appeal, however, we will assume that the bailment may be treated as gratuitous. Even so, the concession does not advance us beyond the threshold of the ease. A gratuitous bailee, receiving into his possession the valuable property of another for safe
“Conceding the deposit to have been gratuitous, we inquire what is the duty of a bank in care of bonds or other papers .deposited for safe-keeping. No one would contend that it should be held as an insurer. On the other hand, such papers are left with banks because of their special facilities for safely keeping them. Their duty is to be measured somewhat by their situation, and it is exacting none too much to require that banks accustomed to receive such deposits exercise that care which business men of prudence would exercise in keeping property of like value in like circumstances.”
The Massachusetts court says that:
“Everyone who receives the goods of another in deposit impliedly stipulates that he will take some degree of care of it. The degree of care which is necessary to avoid the imputation of bad faith is measured by the carefulness which the depositary uses towards his own property of similar kind.” Altman v. Aronson, 231 Mass. 588 (121 N. E. 505).
And again, in the same case, the court says:
“The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith. That is, shall use the degree of care in the performance of the undertaking which is measured by the carefulness which the depositary uses toward his own property of similar kind, under like circumstances.”
The same holding is repeated by the same court. Rubin v. Huhn, 229 Mass. 126 (118 N. E. 290). See, also, Merchants Bank v. Affholter, 140 Ark. 480 (215 S. W. 648); Boyden v. Bank of Cape Fear, 65 N. C. 13; First Nat. Bank v. Graham, 79 Pa. 106.
Quite in point, also, is the statement of the rule by the Vermont court, in Whitney v. First Nat. Bank, 55 Vt. 154, that the duty of the bailee in such case required it to keep the bonds in good faith within its safe, under all the safeguards afforded to like property of its own.
It would be a very violent departure from this rule for us to hold, as a matter of law, that the claim of plaintiff in this case has no foundation except the presumption which attaches
As what we have already said necessitates a reversal of the judgment below and a remand of the case for new trial, we pass other questions argued by counsel without discussion. The judgment appealed from is reversed, and new trial ordered.— Reversed.