Deposit Bank of Carlisle v. Fleming

• Decision Date: 26 February 1898
• Citation: 44 S.W. 961
• Parties: DEPOSIT BANK OF CARLISLE v. FLEMING.
• Court: Kentucky Court of Appeals

44 S.W. 961

DEPOSIT BANK OF CARLISLE v. FLEMING.

Court of Appeals of Kentucky.

February 26, 1898

Appeal from circuit court, Nicholas county.

"Not to be officially reported."

Action by Ida Fleming against the Deposit Bank of Carlisle. From a judgment for plaintiff, defendant appeals. Affirmed.

John P Norvell and John I. Williamson, for appellee.

BURNAM J.

Appellee alleges that she deposited with the appellant bank $1,500 under an agreement with the bank that this money was to be invested safely, so as to yield her interest at the rate of 6 per cent. per annum, and that the bank was to have, as compensation for its services, all that it could make out of the money in excess of 6 per cent.; that this agreement was made with the cashier of the bank, with the approval of the directors; and that her money was loaned to persons who at the time the loan was made were insolvent, which fact was known to the cashier, or could, by the exercise of ordinary care, have been so known. Appellant, for answer, denies that it ever entered into any agreement with appellee by which her money was to be invested by the bank "in safe security so as to yield her 6 per cent. interest per annum," or loaned at all by it; denies that the persons to whom the money was loaned were at the date of the transaction insolvent, or known by the cashier to be so; and denies the power of the cashier to enter into such an agreement, and its liability thereunder. On the trial of the case in the lower court, the jury, under a peremptory instruction, found for plaintiff, and we are asked on this appeal to reverse the judgment, chiefly upon the ground that the court erred in giving the peremptory instruction, and in the refusal to give instructions Nos. 2 and 3 offered by defendant.

By instruction No. 2 the court was asked to say to the jury that unless they believed from all the evidence that Congleton, as cashier, had authority from the defendant's board of directors to borrow or use plaintiff's money, and to allow her 6 per cent. interest thereon, or that it was the custom or usage of the defendant to borrow or use money other than its capital stock and regular deposits, and allow 6 per cent. interest thereon, they should find for the defendant; and in instruction No. 3 defendant asked the court to say to the jury that if they believed from all the evidence that Congleton, as cashier of defendant bank, exercised reasonable skill and ordinary care in lending plaintiff's money, and that at the time he loaned the same to the firm of W. A. Wilson & Co. that firm was solvent, or that Congleton had reason to believe that the firm was solvent, then they should find for the defendant. The appellant also complains of the admission of testimony tending to prove declarations made by the cashier as to the liability of the bank for plaintiff's money.

The facts as detailed by the witnesses appear to be about as follows: Appellee had some money which she desired to make profitable, and she authorized her brother J. P. Fleming to make some arrangement about it. He states that in December 1888, he was in Carlisle, and went to see the cashier of the defendant bank, and asked him if he could use his sister's money; that he replied that he could, at 6 per cent., and, in response to an inquiry as to how it was to be used, he replied that he would take her money, and use it in the same way that he did Mr. Dennis' (Mr. Dennis being a brother-in-law of appellee's brother), whose money the bank had been handling for a number of years,-that is, that he would loan it on first mortgage on good real estate, and allow 6 per cent. interest; that he produced a package, and showed to witness exactly how he had loaned the money of Mr. Dennis; that, under this agreement, $500 was immediately deposited in the defendant bank; and that subsequently thereto, at intervals, under the same arrangement, appellee transmitted to appellant bank, through the bank at Flemingsburg, various sums, until her deposits amounted in the aggregate to $1,500. This money was placed to the credit of appellee upon the books of the bank, and, when loaned, the...