First State Bank of Indiahoma v. Menasco

Opinion by RUMMONS, C. (after stating the facts as above). The plaintiff complains in its first specification of error of the action of the court in overruling its objection to any statement being made with reference to the cross-petition of defendant; and of the overruling of its objections to the introduction of evidence on the part of defendant; and of the overruling of its demurrer to the evidence offered by defendant. It is contended on behalf of plaintiff that the “Special Indorsement' Contract” made by the defendant was a contract between him and J. E. Moore; and that, as the special deposit was made by defendant pursuant to such contract and to guarantee its performance by him, it was necessary that defendant and J. E. Moore have settlement on this “Special Indorsement Contract” before the defendant could claim or the plaintiff pay over any funds in the special deposit. It is further contended that the bank was not a party to the agreement between Moore and Menasco, but merely a *755 custodian of the funds, that it had no other duty in the premises than to safely care for the funds in accordance with the agreement under which it was deposited, and that the defendant could have no claim against it for the funds in such deposit until a settlement was had between him and J. E. Moore. It is therefore urged that inasmuch as the cross-petition does not show any such settlement, and as the evidence also fails to show it, the objections to the statement, and to the introduction of evidence, and the demurrer to the evidence, should have been sustained. We think the plaintiff is in error in its interpretation of the “Special Indorsement Coñtract.” While the contract is signed by J. E. Moore, as well as the defendant, from a perusal of it, it is apparent that there was no obligation to or liability on the part of said J. E. Moore expressed in the terms of said contract. The contract clearly expresses an agreement on the part of defendant to indorse all notes held by the plaintiff, and to pay 55 per cent, of any and all losses sustained by the plaintiff in the event said notes were uncollectible. It further creates an obligation on the part of the plaintiff to use every effort to collect said paper, and to exhaust all security upon said notes; the plaintiff is further, obligated to- take action for the collection of said notes within 30 days after maturity thereof. It seems clear that J. E. Moore had no part in this contract; that he was to receive no benefits therefrom, except such benefits as might accrue to him as a stockholder. It further appears from the ■contract that the defendant was to become the owner of •55 per cent, of each note or overdraft uncollected which was paid by him. It is certain that Moore, as a stockholder tof the plaintiff, could not convey any interest in the notes *756 owned by the plaintiff. The evidence also discloses that the plaintiff paid back to the special account of defendant sums which had been charged to such account upon notes which were afterwards collected. This “Special Indorsement Contract” is witnessed by C. A. Chambers and I. V. Pruitt, who at the time were,. respectively, cashier and assistant cashier of the plaintiff. It seems clear to us that this contract was made for the benefit of plaintiff; that plaintiff had knowledge of it and its contents, and accepted the benefits thereof and acted upon the terms thereof to some extent. We think the court committed no error in overruling the objections to the statement and the introduction of evidence and the demurrer to the evidence. In specification of error No. 2, plaintiff complains of the overruling of its motion for new trial; that the court erred in not rendering judgment for plaintiff against defendant; that the court erred in overruling plaintiff’s objection td the introduction of evidence of defendant; and that the court erred in overruling objections to the introduction of the “Special Indorsement Contract.” We think this specification of error is without merit for the same reasons that render the complaints embodied in specification No. 1 of no avail. Specifications of error 3, 4, 5, 6, 7, and 8 go to objections to the introduction of evidence. We do not think it would serve any good purpose to set out the questions and objections in detail. We need only notice one objection, which goes to the testimony of the defendant as to what was said at the time the first deposit was made by him in the special account. The objection was on the ground that the evidence was an attempt to vary the terms of a written contract. We think the evidence was clearly admissible as showing how the defendant came to deposit *757 the money with the plaintiff, and that it did not in any way tend to vary the terms of the written contract set up by defendant. Specifications Nos. 9, 10, and 11 complain of the admission by the court of a check drawn by defendant on the Moore-Menasco account, and of a check drawn by defendant upon his individual account, in amounts sufficient to pay the note of defendant held by plaintiff. We think these were clearly competent, as showing tender of payment by defendant, and a request on his part that the balance in the special account be applied to his note. Specification No. 11 complains of testimony, admitted over ob-. jection, that neither plaintiff nor Mr. Moore had ever tendered defendant any part of the notes, 55 per cent, of which were coming to him on account of the escrow account. Any error there may have been in admitting this evidence was harmless, and could have resulted in no prejudice to the plaintiff. • Specification of error No. 12 assigns error in the admission of four checks drawn on the Moore-Menasco account by C. A. Chambers, distributing about $1,000 of that account to himself and Moore and others who were interested with them in the purchase of the stock of defendant in the plaintiff bank. We think the court committed no error in admitting this evidence. It was competent as showing the amount in the account at the time the checks were drawn. It also tended to show that it was not necessary for the bank to hold this money to take up past-due notes under the “Special Indorsement Contract” of defendant. Specifications of error Nos. 13 and 14 go to the introduction of evidence, also to the overruling of motions of *758 plaintiff for a directed verdict, and for judgment in favor of the plaintiff against the defendants. We think the evidence objected to was competent, and the overruling of the motions for directed verdict and for judgment have already been considered and disposed of. The plaintiff complains of the giving by the court of instruction No. 2, and of the refusal of instructions requested by plaintiff. We have examined the entire charge .given by the court to the jury, and we think it fully, and fairly covers the issues between plaintiff and the defendants in this case, and that the court committed no error in Refusing the instructions requested by plaintiff, for the .reason that those instructions requested which were not fully covered by the charge given by the court did not correctly state the law applicable to the issues in this case. We do not deem it necessary to extend the instructions given and requested in full in this opinion. The final specifications of error complain of the overruling of plaintiff’s motion for new trial, and of the overruling of its motion for judgment. The case was presented to the jury under instructions which fully covered the issues arising out of the pleadings in the case. The evidence discloses that the funds in the special deposit made by the defendant were for the security of plaintiff, and were to be applied by it upon its uncollectible paper, under the conditions set out in the “Special Indorsement Contract,” and could not be so applied, except under such •conditions. Smith v. Sanborn State Bank, 147 Iowa, 640, 126 N. W. 779, 80 L. R. A. (N. S.) 517, 140 Am. St. Rep. 336. There was evidence offered which would warrant the jury in'finding that, as to the notes which are sought to be charged against his special deposit, the plaintiff had wholly failed and neglected to comply with any of the conditions *759 of the contract. If the jury so found, there was evidence sufficient to warrant them in finding that the funds in this special deposit were to be charged only in accordance with the terms of the “Special Indorsement Contract,” and that the funds so remaining belonged to the defendant. This being the case, defendant was entitled to set off against plaintiff’s demand the amount remaining in the special deposit. There being no error in the record, and there being' evidence tending to support the verdict of the jury, the-verdict should not be disturbed, and the judgment of the-court below should be affirmed. By the Court: It is so ordered.