Watson v. Fagner

Mr. Justice Scott delivered the opinion of the court: The counts in the declaration setting up the express contracts aver that they were made on June 1, 1900. The evidence of the plaintiff shows the contract to have been made in the year 1893. The defendant, at the close of the plaintiff’s testimony, moved to strike out the evidence in regard to this contract on account of this variance, and the action of the court in overruling that motion is assigned as error. A different rule prevails in this respect where the contract sued on is written from that which obtains where it is verbal. In assumpsit upon a parol contract, the day upon which it is made being alleged only for form, and where the time within which the contract is to be performed is not determined from that date, the plaintiff is at liberty to prove a contract express or implied, made at any time. Singer v. Hutchinson, 183 Ill. 606; Frazer v. Smith, 60 id. 145; Searing v. Butler, 69 id. 575. ■ The case of Wabash Western Railway Co. v. Friedman, 146 Ill. 583, is one in which the contract itself was not correctly described in the declaration. As counted upon there, the contract was to carry the plaintiff from Kirks-ville to Glenwood Junction while the evidence showed a contract to carry the plaintiff from Moberly to Ottumwa, Kirksville and' Glenwood Junction being intermediate stations between Moberly and Ottumwa, all on the line of the defendant. It will be observed that in the case at bar the date was no part of the contract, and the contract itself was not misdescribed. There was no error in overruling the motion. It is assigned as error that the court improperly permitted the plaintiff to testify that Watson’s custom was to collect the principal and interest of plaintiff’s notes and loan his money, and improperly permitted plaintiff to show that Watson caused or permitted the endorsement of Fagner’s name upon the back of the note before it was put in judgment. This evidence tended to show that Watson was complying with the contract as plaintiff claimed it existed, and therefore supported the latter’s theory. It is also urged that the court'erroneously refused to permit the defendant to show that Watson performed like services for other persons with reference to papers that were left in the bank merely for safe keeping. It is manifest that such testimony would not throw any light on the question as to whether such a contract existed between the parties hereto as appeared from the averments of the plaintiff’s declaration. The evidence was properly excluded. The exceptions taken to the action of the court in passing upon objections to other evidence offered are equally without merit and concern matters of less importance. It is argued with earnestness that there was no evidence tending to support the fourth count of the declaration, in so far as that count charges a failure to loan the money to safe, responsible and conservative borrowers. We are unable to adopt this view. This loan was made on August 23, 1896, to Dwiggins Bros., and no security was taken. It appears that at the time they were the owners pf a stock pf merchandise in a country village; that several years before, they had purchased the stock" with which they had been carrying on their business, and that for the purpose of making this purchase they had borrowed $6000 from Watson, which still remained unpaid; that one of the brothers owned the building in which they carried on their business/ and that Watson held a mortgage thereon for the sum of $3000; (this building was sold in 1899 for $5000;) that no interest had been paid on the real estate loan for several years, and that Watson had begun the practice of carrying an over-draft against the firm at his bank. It does not appear that the firm owned any other property, and while it is true that'the evidence does not warrant the conclusion that Dwiggins Bros, were insolvent in August, 1896, it does warrant a finding that they were not safe, responsible and conservative borrowers, and to loan to them the sum of $3000 for one year without security was not a compliance with the contract declaimed upon by the fourth count. Where a banker takes upon himself the duty of loaning money deposited with him and loans it to persons already largely indebted to the bank, who afterwards become insolvent, whereby the money of the depositor is lost, the act of the banker in making the loan is properly the subject of the closest scrutiny. In such case the suspicion will always arise that the money of the depositor ,was loaned with a view to carrying the borrower along until the money due the bank could be collected. Aside from the denial by Watson, and Ream, his cashier, that any contract was made with Fagner to loan his money and collect the principal and interest as they fell due, the defense was that, if such a contract existed, the loan to Dwiggins Bros, had been ratified by Fagner, and that Fagner himself, by an agreement with Howard Dwiggins, one of the makers of the note, had agreed that the note need not be paid until January 1, 1899, and had conveyed information of this agreement to Watson, and that Watson was thereby relieved from any duty to collect. The evidence was conflicting in reference to whether or not there had been any ratification and in reference to whether there had been an extension of the time of payment. Under these circumstances it is contended that the two defenses last suggested were not properly submitted to the jury. The first and eighth instructions given on the part of the plaintiff both advised the jury what facts are necessary to make the defendant liable to the plaintiff, but contained no reference whatever to a defense founded upon ratification or extension of the time of payment. By these instructions the jury were told that if they found certain facts from the evidence the defendant was liable, and it is not contended that such facts would not establish the liability of the defendant. The complaint is that the instruction did not deal with the affirmative defenses. The court gave to the jury six instructions of its own motion. By the second the jury were instructed that if Fagner ratified the making of the loan Watson would not be responsible for anything done prior to the ratification. By the sixth of these instructions the jury were advised that if the plaintiff extended the time of payment or assumed the burden of collecting the note, and that as a result thereof the note was lost, in whole or in part, Watson would not be responsible. The first and eighth instructions given at the request of plaintiff, when read in connection with the second and sixth given by the court of its own motion, are unobjectionable. The four instructions taken together are a harmonious whole, and state with accuracy the law of defendant’s liability upon the contract counted upon and the law applicable to the alleged ratification and extension. The defendant, on his part, by his nineteenth and twenty-second instructions, sought to have the jury advised that if Fagner extended the time of payment, and that such extension contributed to the loss of the money, Watson was not liable. In each of these instructions this proposition was coupled with the statement that if the jury believed Fagner was negligent in allowing the note to run after it became due, Watson could not be held responsible. There was nothing in the evidence upon which to base this last direction to the jury. If the contract existed as Fagner claimed it did, then it was Watson’s duty to collect the note when it matured, and the fact that Fagner merely failed to attempt the performance of a duty which rested upon the agent could not relieve the agent. The defendant’s fifth instruction is based on the theory that if Watson was a gratuitous bailee there would be liability for nothing except gross negligence. The court modified this instruction and gave it as modified, instructing the jury that Watson would be liable for “carelessness or negligence in making the loan or carelessness or negligence in failing to collect the same, which would amount to a want of ordinary care and diligence” on his part. The modification was properly made. Where a banker acts as agent or trustee for his depositor, without compensation, in investing his money and collecting the same, he is bound to exercise ordinary care and diligence in the performance of the duties which he assumes, and a failure to observe such ordinary care and diligence will make him responsible for any loss resulting from such failure. Isham v. Post, 141 N. Y. 100; Watson v. Roth, 191 Ill. 382. In the cases of Gray v. Merriam, 148 Ill. 179, and Preston v. Prather, 137 U. S. 604, the question of the liability of a bank as the gratuitous bailee of securities left as a special deposit was considered, and the conclusion reached that the bank was bound to exercise ordinary-care and diligence. The reasoning followed in those two cases requires the.exercise of the same degree of card and diligence where the duties assumed are the loaning of money deposited with the bank and the collection .of the loans as they mature. We have carefully considered the other objections urged to the giving and refusing of instructions, and are of the opinion that upon the whole the jury was fairly instructed. The defendant requested the giving of twenty-six instructions. The court gave four of these as requested, modified two others and gave them as modified, refused twenty and gave six of its own motion, while nine were given on the part of the plaintiff. Three instructions were offered by the defendant for the purpose of telling the jury that no recovery could be had under the first, second or third count of the declaration. The refusal of these instructions is complained of. No harm resulted from this action of the court, as it is apparent from the instructions given as a series that no recovery could be had except under the fourth or fifth count. The defendant’s seventh refused instruction was to the effect that the fact that Dwiggins Bros, were insolvent when the bankruptcy proceedings were begun was not evidence that they “were not safe, responsible and conservative borrowers” on August 28,1896. It appeared that they were in failing circumstances at and after the making of the loan in question. The bankruptcy was the culmination of this condition of affairs. The instruction was properly refused. In so far as the other instructions refused correctly stated principles of law applicable to this case, the same principles were embodied in instructions given. The principal questions in this case were issues of fact, which have been settled against appellant by the judgment of the Appellate Court. The judgment of the Appellate Court will be affirmed. Judgment affirmed.