Cable v. Iowa State Sav. Bank

• Decision Date: 04 March 1924
• Docket Number: No. 34789.,34789.
• Citation: 197 Iowa 393,197 N.W. 434
• Parties: CABLE ET AL. v. IOWA STATE SAV. BANK.
• Court: Iowa Supreme Court

197 Iowa 393

197 N.W. 434

CABLE ET AL.

v.IOWA STATE SAV. BANK.

No. 34789.

Supreme Court of Iowa.

March 4, 1924.

Appeal from District Court, Woodbury County; M. W. Newby, Judge.

Supplemental Opinion. On rehearing. Former opinion modified.

For former opinion, see 194 N. W. 957.

E. E. Wagner, of Sioux City, for appellants.

Shull, Stilwell, Shull & Wadden, of Sioux City, for appellee.

PER CURIAM.

A petition for rehearing having been filed in this case by appellant, we have again reviewed the record. We now reach the conclusion that the original opinion should be modified to the extent of permitting the appellant to cover $2,338.03 with interest as provided by law.

[1] It is contended by appellants upon the authority of Garst v. Canfield (R. I.) 116 Atl. 482, and Hungerford v. Curtis, 43 R. I. 124, 110 Atl. 650, 12 A. L. R. 1040, that the court will presume that deposits made after July 6th were of funds belonging to the commission company, and that they were made for the purpose of replacing trust funds. If we were disposed to follow these cases, the difficulty would be that the inference to be drawn from all the testimony is that these subsequent deposits were the proceeds received from the sale of live stock consigned to the commission company by others and sold by it in the regular course of the commission business, and that the only interest the commission company had therein was such charges as it could rightfully make against its customers. In other words, it appears the money so subsequently deposited was not the money of the commission company, but belonged to others. It is not so much regard for the interests of these others, the owners of the funds so deposited, that stands in the way of impressing a trust on these funds in plaintiffs' favor, but the fact that no presumption will be entertained that the deposit of funds not belonging to the commission company was intended as a replenishment of the depleted trust fund belonging to plaintiffs. This distinction is recognized in Baker v. Bank, 100 N. Y. 31, 2 N. E. 452, 53 Am. Rep. 150, where it is said it did not appear there were any unsettled accounts of Wilson & Bro. (the factor and trustee) with any other person or persons for whom they were agents. In United National Bank v. Wetherby, 70 App. Div. 279, 75 N. Y. Supp. 3, it was held that withdrawals and restorations of the trust fund did not operate to extinguish the identity of the trust fund originally deposited, since, the withdrawals being wrongful, the wrongdoer would be presumed to have intended the subsequent deposits as a restoration of the amounts wrongfully withdrawn, and the cestuis que trustent had a right to adopt such acts for their benefit so as to entitle them to the funds so restored unless it appeared that the money used in making such restoration belonged to some one other than the depositor.

We are not disposed to follow the Rhode Island cases to the disregard of this distinction. If they are so followed the logical conclusion would be that, to the extent of plaintiffs' claim, the subsequent deposits by the commission company would constitute a trust fund, and could not be applied by the bank to the...