136 Iowa 1 | Iowa | 1907
Briefly stated, the plaintiff claims that in April, 1904-, she loaned to the defendant bank the sum of $1,550, and, as an evidence of said transaction, said bank delivered to her a certificate of deposit for said sum payable six months after date with interest at 6 per cent. She further alleges that, some time after the transaction here mentioned, the bank, without her authority, knowledge, or consent, obtained possession of said certificate of deposit from her husband, O. L. Scow, who had no authority tó surrender the same; that she has never in any manner indorsed or negotiated said paper; that it is due and unpaid — and she asks judgment for the amount thereof, principal and interest. The defendant denies that it borrowed any money whatever from the plaintiff, and says that the plaintiff’s alleged claim is based on the following transaction: That one C. E. Gunhus, who was then the president of the bank, became and was indebted to the plaintiff upon a personal transaction in which the bank had no interest whatever, for which indebtedness plaintiff held the personal promissory note of Gunhus, who wrongfully and without authority, and without any consideration to the bank, executed and. delivered to plaintiff in payment or exchange for said note the certificate
(3)If in fact it was the intention and understanding of O. L. Scow to leave said money in the defendant bank as a deposit in the ordinary course of business, either at the time the certificate of deposit in question was issued or prior thereto, and if such certificate was issued in pursuance of the business of the defendant bank, and if the defendant bank actually received the amount of money represented by such certificate, your verdict should be for the plaintiff.
(4) Under the law of this State, no officer of a savings bank has authority to issue a certificate of deposit, or bind the bank for any indebtedness, except where the bank actually receives the money or some other valuable consideration therefor. If you find, from the weight or preponderance of the evidence introduced upon trial, that the defendant did not receive any consideration for the certificate of deposit in question either at the time same was issued or prior thereto, then defendant is not liable thereon, and, if you find so, your verdict should be for the defendant. The burden is upon the defendant to so prove.
(5) If you find from the weight or preponderance of the evidence introduced upon the trial that, at the time said certificate of deposit was issued, C. E. Gunhus was personally indebted to plaintiff, substantially as claimed by defendant, and that said certificate of deposit was issued by said Gunhus in payment of such personal indebtedness, and that in fact the defendant bank did not, at such time or prior thereto, receive from O. L. Scow or Anna Scow any money or other valuable consideration because of such cer*6 tificate, your verdict should be for the defendant. The burden is upon the defendant to so prove.
The effect of the paragraph quoted is to inform the jury that, if a good and sufficient deposit of the money in the bank was made by the plaintiff or her husband at the time of the original transaction in the spring of 1903, then the defendant was liable, and the verdict should be for the plaintiff. Appellant accepts this statement of the law as correct, but assigns error upon the phrase, “ if the bank actually received the amount of money represented by such certificate,” which qualification is rejieated in substance in each of the quoted paragraphs. To appreciate the full force of the objection here raised, it must be remembered that the money belonging to the purchaser of plaintiff’s land was already in the bank, and the payment was effected by a transfer of credit, and not of cash. The testimony was such the jury could have found that Gunhus, while professing to transfer the credit to the plaintiff and issuing to her a certificate of deposit or deposit slip therefor, so manipulated the hooks as to conceal the existence of such certificate and transferred the money to the credit of his own private account, and the bank, to all appearances at least, had received nothing whatever from the plaintiff or from any one else on her account.
Now, we are fully persuaded that, whether so intended or not, the charge of the court is fairly open to the construction that the bank could not be held liable upon a certificate so issued, and this we think is not a correct statement of the law. If a bank cashier or a bank president who is engaged in the active charge and control of the bank’s business receives at his usual place of business the money or credits of a customer either as a time, deposit or for credit on open account, the bank becomes at once chargeable therewith, and the fact that the officer puts it down in his own pocket or converts it to his own use is no defense to an action by the depositor, if no collusion in the wrong appears on the part
Other objections raised to the instructions are not well taken. Many exceptions were preserved to rulings upon the introduction of testimony. We think the court could well have given the appellant wider latitude in the cross-examination of the witness Gunhus, to whose devious methods of business this loss, which some one must bear, appears to be directly chargeable; but we should not be inclined to reverse on that ground alone.
Nor the error in instructions to which we have above referred, a new trial is ordered.— Reversed.