Percival v. Strathman

Ladd, J. [747] The trial judge is no longer required, where the amount in controversy does not exceed $100, to certify [748] questions of law for our determination, in order to confer jurisdiction. The practice has been greatly simplifled by section 4110 of the Code, and now all such cases, when containing’ his certificate that “the appeal should be allowed,” are heard on assignment of errors, precisely the same as other actions at law. AVhils the certificate in this case is not in the language of the1 statute, the evident purpose was to allow the appeal, though under the misapprehension that the questions to be decided must be specifically stated. This was unnecessary, and, of course, will not limit this court to those mentioned if any have been omitted. 2 II. It appears that Fred Bridge gave a check for $150 on the defendant firm to plaintiff, and that the latter, after indorsing it in blank, delivered it to his father, with instructions to collect, and remit in payment of a debt plaintiff owed in Missouri. Upon presentation, defendant suggested an existing indebtedness of the father to the firm, and insisted om withholding $57.72 in payment thereof. The father objected, but on the following-day returned, and accepted the balance of $92.28, which he remitted as directed. The defendant supposed the father Avas OAvner of the check, and plaintiff did not learn of the transaction until several days later. Bridge had funds Avith the firm subject to check, and, if not fully paid, recovery may be had for the balance. Thomas v. Bank, 99 Iowa, 209; Roberts v. Corbin, 26 Iowa, 315. The appellant has argued the case on the theory that there Avas a sale of the check. On the contrary, the defendant Avas merely the draAvee, whose duty it was to pay, and the father the agent of plaintiff to collect; and the question to be decided is whether, as against the OAvner, the amount of the agent’s debt may be thus withheld. Now, the defendant parted with nothing, and will be in precisely the same situation after paying this balance as before the transaction. The absence of notice, then, is Avholly immaterial. That, under [749] such, circumstances, the agent’s indebtedness may not be applied on a check or draft as against the claim of the principal, is well settled hy authority. Bank of Metropolis v. New England Bank, 6 How. 224 ,(12 L. Ed. 409) ; Wilson v. Smith, 3 How. 764 (11 L. Ed. 820). See Carroll v. Bank, 30 W. Va. 518 (4 S. E. Rep. 440, 8 Am. St. Rep. 101), and Warman v. Bank, 185 Ill. Sup. 60 (57 N. E. Rep. 6, 49 L. R. A. 412) ; 2 Morse Banks 3d ed.) 591. 3 III. Whether further demand before bringing the action was necessary cannot be considered, as the point is not made in the assignment of errors, and the evidence left no doubt as to plaintiff’s ownership of the check. Many other questions are argued hy appellant, but, as none save those mentioned are involved, we ought not to consider them on this appeal. — Affirmed.