Littleton v. Peoples' Bank

Given, C. J. 1 I. Appellants contend that the court •erred in directing a verdict for the defendants for two reasons, namely, that, by the ruling on the demurrer, it was determined and adjudicated that defend-ants were liable upon said draft and letter, and because said exhibits show on their face “a promise and undertaking and an agreement on the part of defendants.” Plaintiffs, in their petition, unquestionably rest their right to recover against the defendants other than Rock solely -upon the draft and letter. The single question presented by the demurrer was whether said writings contain any contract or promise upon which defendants are liable. By overruling the demurrer the court held that .they did. The evidence on the part of the plaintiffs, is in harmony with and fairly establishes the allegations of facts in the petition. The motion for a verdict was in the nature of a demurrer to" the evidence; and, as the allegations of facts in the petition and the evidence are the same, the motion presented the same question that was raised by the demurrer. Appellees call attention to chapter 96, Acts Twenty-fifth General Assembly, providing that “when a demurrer shall be overruled, and the party demurring shall answer or reply, the ruling on the demurrer shall not be considered as an adjudication of any question raised by the demurrer.” This demurrer was overruled, and the case tried before the passage of said act. We are of the opinion that the act does not apply to cases decided prior to its taking effect. See Long v. Mellet, 94 Iowa, 548 (63 N. W. Rep. 190). As this act must control in all cases arising under it, our conclusion is only important as applied to this and [324] other cases arising prior to said act. In view of these facts, it is unnecessary that we review the cases cited. The late case of Brown v. Cunningham, 82 Iowa, 512 (48 N. W. Rep. 1042),is identical in its facts, so far as relates, to this question, with this case. Following the conclusion announced in that case, we hold that the court was not concluded by the ruling on the demurrer from sustaining defendants’ motion for a verdict. In that case it is said: “We think that a court is not bound by a prior decision in a case where no rights have been acquired under it, and may change, modify, or overrule it if convinced of its error.” 3 II. M. L. Eock was engaged in shipping hogs and cattle to the Chicago market, and was known to appellants to be so engaged. Appellees were not doing that kind of business, but exclusively a banking business, of which facts appellants were also aware. Eock, pursuing a common practice, drew on appellants as against anticipated shipments.to them, and they, relying upon the shipments being made, paid the draft. If nothing more than the draft appeared, it would not be contended that appellants had reason to or did rely upon any other person than Eock that the shipments would be made. Our inquiry is whether the letter contains any promise or agreement on the part of' appellees that the shipments would be made,, upon which appellants had a right to rely. The letter says: “Mr. M. L. Eock has drawn upon you to-day $2,230.00.” Thus far it is unquestionably a letter of' advice from the bank through which the draft was made, and contains no element of promise or agreement. “Will ship you next Monday night,” we think, was clearly intended and understood to refer to what Eock would do in the way of shipment. Appellants had no reason to expect a shipment of hogs or cattle from the bank. It was not in that line of business, and had not drawn on appellants on such account. Eock [325] was in the business. He had drawn against future shipments, and appellants had a right to and no doubi did believe that he would make the shipments. Here again, the letter is merely one of advice as to what Rock said he was going to do, and could not have been understood as making any contract, promise, or guaranty that Rock would make the shipments. It was upon Rock, not upon appellees, that plaintiffs relied for the shipments; and we are in no doubt but that, confiding in Rock, the draft would have been as promptly paid without the letter as with it. Appellants cite Ellsworth v. Campbell, 87 Iowa, 532 (54 N. W. Rep. 477), wherein an entirely different question was involved. Our conclusion upon both questions discussed is that there was no error in the action of the district court, and the judgment is therefore affirmed. Deemer and Kinne, J.J., dissenting.