American Express Co. v. Des Moines Nat. Bank

• Decision Date: 23 November 1909
• Citation: 123 N.W. 342,146 Iowa 448
• Parties: AMERICAN EXPRESS COMPANY, Appellee, v. DES MOINES NATIONAL BANK, Appellant
• Court: Iowa Supreme Court

123 N.W. 342

146 Iowa 448

AMERICAN EXPRESS COMPANY, Appellee, v. DES MOINES NATIONAL BANK, Appellant

Supreme Court of Iowa

November 23, 1909

REHEARING DENIED TUESDAY MARCH 15, 1910.

Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.

Affirmed.

Hager & Powell, for appellant.

Lyon & Lyon and Guernsey, Parker & Miller, for appellee.

OPINION

THE facts appear in the opinion. Order affirmed.

EVANS C. J.

This case was before us on a former appeal from an interlocutory order. American Express Co. v. Des Moines National Bank, 136 Iowa 597, 111 N.W. 31. In the case of Irwin Bank v. American Express Co., 127 Iowa 1, 102 N.W. 107, the defendant therein (plaintiff herein) was held liable to Irwin for the sum of $ 2,000, being the supposed contents of a package delivered to the express company by Des Moines National Bank as consignor for the Irwin Bank as consignee. Afterwards this action was brought by the express company against the consignor for damages, on the general ground that fraud and deceit was practiced upon it by one of the employees of said National Bank in fraudulently reporting the contents of such package and obtaining a receipt therefor as containing $ 2,000, whereas, in fact, it contained no money. As a third division of its answer, the defendant pleaded that it had been adjudicated in the former case that the Des Moines National Bank was the agent of the bank of Irwin, and that the package delivered by it did contain the sum of $ 2,000, and that the Des Moines National Bank, as such agent, is now entitled to plead the judgment in the former action as an adjudication, and such adjudication was therein pleaded as a complete defense. The plaintiff demurred to this defense. The demurrer was sustained by the lower court. The defendant refused to amend, and stood upon its pleading and appealed to this court, where the ruling of the trial court was affirmed. 136 Iowa 597, 111 N.W. 31. The case being remanded, the defendant amended such third division of its answer, and withdrew the allegation that its agency was adjudicated, and, in lieu thereof, alleged that it was in fact such agent, and with such amendment it still pleaded the former adjudication. Upon motion of plaintiff the amendment was stricken. The grounds of the motion were based upon the history of the pleading as above stated. From this order the defendant has again appealed.

The case is argued here by appellant on the theory that his amendment to the third defense was sufficient to make the same a good and valid defense. This position is contested by the appellee. The theory of the defendant is that the former opinion of this court only held that there was no adjudication of its agency. Having now alleged such agency, it contends that it now presents a good defense. We think, however, that the opinion on the former case is broader than is assumed by counsel, and that it holds, in effect, that the adjudication pleaded is not available to the defendant in this case. The questions now presented by the appellant were in fact presented by it on the former appeal, and were duly considered by this court. We have given the question further consideration, and are satisfied with the former conclusion. The argument of the defendant is that it was agent for the Irwin Bank for the remittance of the money by express; that it was adjudicated in the Irwin Bank case that the express company had received the money; and that the defendant as agent of the Irwin Bank is entitled to the benefit of such adjudication. The rule invoked by appellant is not so broad and general in its application as is assumed. There are abundant cases wherein agents have been permitted to plead adjudications in favor of their principal as bar to actions against themselves. But the ground upon which such plea is permitted is essentially different from that which exists in this case. The cases cited by appellant's counsel in their brief are illustrative.

Lea v. Deakin, 11 Biss. 23, 15 F. Cas. 95 (Fed. Cas. No. 8,154), was a case wherein the plaintiff brought suit to restrain the defendant from infringing an alleged trade-mark. It was shown in defense that the defendant was agent for a principal in the use of the alleged trade-mark, and that the plaintiff had previously sued such principal, and that it had been adjudicated in such suit in a trial on the merits that such principal had a right to the use of the name which he applied to his goods. It was held that this adjudication protected the agent as well as the principal on the theory that what the principal had a right to do by himself he had the same right to do by his agent. Foust v. City of Huntington, 113 Ind. 139 (15 N.E. 337), was an injunction suit against a city and its officers to restrain them from committing certain acts. It was held that a former adjudication in an action brought by the plaintiff against the city alone to enjoin the same acts, wherein decree was rendered in favor of the city, was a bar to a second action against the officers of the city; the city being the real party in interest in each case.

Castle v. Noyes, 14 N.Y. 329, was a case where the plaintiff sued a master for a trespass committed by a servant. The plaintiff had previously sued the servant, who was defended by the master. After trial on the merits, judgment was rendered in that case for the servant. It was held that this judgment was a bar to a second action for the same trespass against the master.

Emery v. Fowler, 39 Me. 326 (63 Am. Dec. 627), was also a trespass case. The plaintiff first sued the master for the trespass of his servant, and was...