Elliott v. Capital City State Bank

• Decision Date: 18 November 1910
• Citation: 149 Iowa 309,128 N.W. 369
• Parties: ELLIOTT v. CAPITAL CITY STATE BANK.
• Court: Iowa Supreme Court

149 Iowa 309

128 N.W. 369

ELLIOTT

v.CAPITAL CITY STATE BANK.

Supreme Court of Iowa.

Nov. 18, 1910.

Appeal from District Court, Polk County; James A. Howe, Judge.

Action at law upon a certificate of deposit. Verdict and judgment for the defendant, and plaintiff appeals. Affirmed.Dale & Harvison, for appellant.

Read & Read, for appellee.

WEAVER, J.

This action was begun December 24, 1903, upon a certificate of deposit issued by defendant for $1,500 bearing date March 23, 1885, payable on demand to the order of Mary J. Penrose, and purporting to be indorsed by the payee to Isaac C. Penrose, the plaintiff's intestate. Plaintiff also traces ownership of said instrument to himself through another line of indorsements, but the question of his right to sue may be regarded as beyond question if the certificate be a valid and enforceable obligation. Upon filing the original petition, defendant demurred thereto on the ground that the action was barred by the statute of limitations. The demurrer being sustained, plaintiff appealed to this court and obtained a reversal of the ruling. See Elliott v. Bank, 128 Iowa, 275, 103 N. W. 777, 1 L. R. A. (N. S.) 1130, 111 Am. St. Rep. 198. Thereupon the cause was remanded to the trial court where the defendant answered pleading payment of the certificate, and further alleging that in the year 1885 Mary J. Penrose, then being the owner of the certificate, demanded payment thereon, which demand had the effect to set the statute of limitations running, and that the bar became complete before this action was begun. A second trial resulted in a disagreement of the jury, but upon the third trial verdict was returned for the defendant. It is from the judgment entered upon this verdict the present appeal is prosecuted. The sufficiency of the evidence to sustain the verdict is not questioned by counsel, but reliance is placed for a reversal of the judgment below upon alleged errors occurring at the trial. It may be well, however, to state certain facts which for the most part are undisputed in order to see more clearly the bearing of the several points and assignments of error made in behalf of the appellant.

At the date of the certificate in suit, A. W. Naylor, the brother of Mary J. Penrose, was president of the defendant bank, and continued his connection therewith until the year 1888, when he withdrew therefrom, and removed to California, where he has since resided. In 1885 Mrs. Penrose was a resident of Kansas, and, having received $1,500 insurance upon the life of a deceased member of her family, sent it to her brother for deposit in the bank over which he presided. In the fall of the year 1885, the Penrose family removed from Kansas to California, where they remained until the death of both wife and husband. As a witness, Naylor was at first somewhat confused and indefinite in his recollections concerning this item of deposit, but, on reflection and refreshing his memory in various ways, he swears that in the year 1885, about the time his sister removed from Kansas to California, she wrote him a letter saying that she had lost or mislaid the certificate, and requested him to send her the amount of money it represented. In response to this demand, he says he sent her the full amount due with a duplicate certificate for her to indorse and return. Later he received a letter acknowledging the receipt of the money and the duplicate draft duly indorsed. These papers were filed with the vouchers of the bank. To account for the nonproduction of these papers evidence was produced that the books and papers of the bank covering the time in question had been destroyed. As bearing upon the probability of the truth of Mr. Naylor's story, it was also shown that he is not, and for many years has not been, in any manner connected with the bank, and has no apparent interest in defeating the claim made in behalf of his sister's family; that Mrs. Penrose and husband were at all times people of small means; and that, so far as appears, after the year 1885 no member of the family or other person ever heard either of them mention the certificate or assert any claim to a deposit in this bank, and the existence of the certificate was wholly unknown to the heirs until some six years after the death of Isaac Penrose, when it was found in an old pocketbook which had belonged to him. Mrs. Penrose died in 1894, and her husband died in 1897. Aside from the value, if any, of this certificate, the husband left a very small estate and his wife left none. During the last years of his life, Isaac Penrose was upon the losing side of some small real estate deals, and had on several occasions borrowed small sums at a bank, and complained of being “hard up.” Other circumstances are relied upon by the defendant as supporting its plea of payment, but we think it unnecessary to further prolong this statement. In a brief which gives evidence of such painstaking labor and investigation, counsel for appellant call our ttention to the alleged errors of the trial court, and the proposition of law believed to be applicable to the record so presented. These are entirely too numerous for us to attempt their discussion in detail within the reasonable bounds of a written opinion, and we shall content ourselves with referring as briefly as practicable to those which appeal to our minds as being of principal importance. Speaking generally, the exceptions taken by the appellant go, first, to rulings upon objections to the introduction of evidence; and, second, to the court's charge to the jury.

1. The answer as it stood during the progress of the trial contained a count denying the plaintiff's title to the paper sued upon, and in support of such denial evidence was offered and admitted over plaintiff's objection tending to show that, when the certificate was first presented to the bank after its discovery in the year 1903, it did not bear the indorsement of Mary J. Penrose, who had then been dead several years. The effect of this testimony was, of course, to sustain the theory that her purported indorsement had been placed upon the instrument by some other person without authority to do so. If we understand counsel correctly, their proposition is that the answer did not put in issue the genuineness of this signature, and the testimony was therefore not competent evidence under the rule of Code, § 3640, relating to the verification of answers in such cases. Were the question a material one upon this appeal, we should incline to the opinion that, while the genuineness of the signature is not denied in express terms, it is fairly implied in the language used by the pleader, and that the evidence was competent. How the manner of pleading it may have affected the burden of proof we need not here undertake to say. It should further be said that, the person whose signature was questioned being dead, it is at least doubtful whether the statute cited has any application. But the question raised is rendered entirely immaterial for the purpose of this case, because, at the close of the testimony, the court withdrew from the jury the issue made by the denial of the plaintiff's title and charged in substance that such title was established as a matter of law, and that the jury must confine its inquiry to the other defense pleaded, to wit, payment and the statute of limitations. We will presume that the jury observed the instructions of the court in this respect. But it is said...