Farmers and Merchants Bank of Hanna v. Peoples Trust and Savings Bank of Laporte

• Decision Date: 17 February 1936
• Docket Number: 15,123
• Citation: 199 N.E. 892,101 Ind.App. 474
• Parties: FARMERS AND MERCHANTS BANK OF HANNA ET AL. v. PEOPLES TRUST AND SAVINGS BANK OF LAPORTE
• Court: Indiana Appellate Court

199 N.E. 892

101 Ind.App. 474

FARMERS AND MERCHANTS BANK OF HANNA ET AL. v. PEOPLES TRUST AND SAVINGS BANK OF LAPORTE

No. 15,123

Court of Appeals of Indiana

February 17, 1936

1. TRIAL---Waiver and Correction of Errors---Refusal to Direct Verdict---Introduction of Further Evidence.---Error, if any in trial court's overruling of plaintiff's and defendant's motion to direct the verdict at the close of plaintiff's evidence was waived when the defendant thereafter introduced evidence and plaintiff introduced rebuttal evidence, p. 479.

2. APPEAL---Review---Direction of Verdict---Evidence and Inferences Considered.---In reviewing trial court's action in directing a verdict, only the evidence and inferences therefrom adverse to the moving party may be considered, p. 480.

3. TRIAL---Taking Case From Jury---Direction of Verdict---For Defendant.---The trial court may direct a verdict for defendant only when the evidence introduced and the inferences properly drawn therefrom wholly fail to establish an essential issue and is wholly insufficient to sustain a verdict for plaintiff, p. 480.

4. TRIAL---Taking Case From Jury---Direction of Verdict---For Defendant.---Defendant's motion for a directed verdict is equivalent to a demurrer to the evidence, and the court must accept as true all facts which the evidence tends to prove in favor of plaintiff, and, if conflicting, to consider only that favorable to plaintiff, p. 480.

5. BANKS AND BANKING---Representation by Officers and Agents---Unauthorized Acts---Ratification---By Conduct.---Although officers of different banks lacked authority to bind their respective banks by their agreement the banks, by their conduct in afterward acting upon the agreement, ratified it and made it binding from the beginning, p. 481.

6 CONTRACTS---Consideration---Forbearance---Generally.---A valid and legal consideration for a contract may consist of some forbearance, loss, or responsibility given, suffered, or undertaken by another party, p. 482.

7. CONTRACTS---Consideration---Forbearance---Agreement Not to Sue.---An agreement not to sue may be a valid consideration for a contract, p. 482.

8. BANKS AND BANKING---Special Deposits---Action for Loss---Negligence---Loss by Robbery.---In action against a bank for loss of bonds deposited, for safekeeping and stolen in a robbery of the banks, whether the bank was negligent in keeping such bonds in a safe with an ordinary "combination lock," whereas it kept its own bonds under a "time lock," held for the jury, p. 482.

9. APPEAL---Review---Direction of Verdict---Held Error.---In action to recover bonds deposited in bank for safekeeping and lost in a robbery, the trial court's direction of a verdict for defendant held error, there being some evidence to support all essential allegations of the complaint, p. 483.

From LaPorte Circuit Court; Alfred J. Link, Judge.

Action by The Farmers and Merchants Bank of Hanna and others against The Peoples Trust and Savings Bank of LaPorte to recover bonds lost in a robbery of defendant bank. From a judgment for defendant upon a directed verdict, plaintiffs appealed.

Reversed.

Rees & Smith, for appellants.

Herman W. Sallwasser, Milton J. Sallwasser, Norman H. Sallwasser, Lemuel Darrow, Earl Rowley and C. V. Shields, for appellee.

OPINION

WIECKING, J.

This was an action by the appellants against the appellee to recover the value of certain bonds of the value of $ 9,450.00 and interest thereon and to collect from the appellee bank the amount of money which the appellant bank had paid to its customers and the interest thereon under a certain agreement alleged to have been entered into between the officers of the appellant bank and the officers of the appellee bank. The complaint upon which the action was tried consisted of five paragraphs, each alleging a different ground for recovery. The first paragraph of complaint is based upon simple conversion and charges the appellee bank with converting the bonds belonging to the customers of the appellant bank to its own use; the second paragraph of complaint proceeds upon the theory that the appellee bank was a gratuitous bailee of the bonds, and the third paragraph of complaint alleges the establishment of a bailment for mutual benefit. The second and third paragraphs of complaint were based upon substantially the same allegations as follows: That in November, 1923, the appellant bank had in its possession Liberty Loan Bonds to the amount of $ 16,000.00 which were the property of the customers of the appellant bank. That on or about November 13, 1923, the appellant bank at the request of the appellee deposited these bonds in appellee bank for safekeeping. That thereafter certain bonds were withdrawn by the appellant bank until in November, 1926, the appellee had of the original bonds deposited for safekeeping, Liberty Bonds of the value of $ 10,950.00. In November, 1926, appellee informed the appellant bank that the appellee bank had been robbed in the daytime and that all of the bonds belonging to appellant's customers then in its possession had been stolen and taken from the custody of appellee. That appellee would not be able and could not deliver said bonds to appellant in accordance with their agreement. That since the date of said robbery the appellee has paid to the appellant bank the sum of $ 1,500.00, representing the par value of that number of bonds alleged to have been stolen. That appellants have demanded the return of said bonds or the value thereof but appellee has notified appellant bank that they do not have said bonds and will not deliver them to appellants and that said appellee still refuses to pay the value thereof. Each of said paragraphs asks damages of $ 12,000.00. In addition to the above facts the third paragraph alleges negligence on the part of the appellee in that the bonds in question were not cared for in the same manner as those of appellee and were not kept under a "time lock" but in a safe locked with an ordinary "combination lock," that the said safe was not open to view but was concealed from the street by curtains and that appellee bank did not carry insurance against robbery and burglary nor was it equipped with a burglar alarm system. The fourth and fifth paragraphs of the complaint alleged all of the facts above set out and also that after the robbery in November, 1926, in consideration of the appellant bank refraining from pressing any claim against appellee or filing any action against appellee on account of said bonds, the officers of the appellee bank made an agreement with the officers of the appellant bank that appellee would reimburse appellant bank over a period of years for the loss occasioned by the robbery; that if any large amounts of bonds were called for, appellee would furnish them; that if bonds in small denominations, of $ 100.00 or less, were called for, and if the appellant bank had the money to pay for the same, the appellant bank would purchase such bonds for its customers as called for and the appellee bank would reimburse the appellant bank for the amounts which the appellant bank paid for said bonds. The fourth paragraph of complaint further alleges compliance with this agreement by both the appellee and the appellant bank and that pursuant thereto the appellee had paid the interest on the stolen bonds up to April 15, 1930, and had also paid $ 1,500.00 on the principal of the bonds. That the appellant bank had paid to its customers the sum of $ 2,450.00 pursuant to the said agreement in payment for such bonds stolen from appellee and that appellee had failed and refused to reimburse appellant bank therefor; that a demand for such sum and return of the balance of the bonds has been refused and prays judgment for $ 12,000.00. The fifth paragraph of complaint alleges all of the facts set out in the fourth paragraph of complaint and alleges that pursuant to the agreement above the appellant bank had taken up bonds belonging to its customers in small amounts and that at the time of filing of the complaint, the appellant bank had paid to its customers the amount of $ 2,450.00 for bonds which had been stolen from the appellee and claims that appellee owes the appellant bank the sum of $ 2,450.00 for money expended by the appellant bank in payment of bonds which belonged to its customers. The defendants filed an answer in two paragraphs to the first three paragraphs of complaint, the first paragraph being in general denial, the second negativing any negligence in the care of the bonds and setting up the facts concerning the robbery. Appellee also filed an answer in two paragraphs to the fourth and fifth paragraphs of complaint, the first of which was in general denial and the second denied that appellant bank had ever contended appellee was liable to it for said loss by robbery, or that any agreement had ever been entered into, denied there was any reason or consideration for any agreement and that all statements and allegations of appellant bank as to such agreement to reimburse appellant bank or its customers for any loss in any manner were false. The appellants filed a reply in general denial to the affirmative answers and the case was submitted to a jury for trial. At the conclusion of the appellants' evidence, the appellee filed a motion for a directed verdict. The appellants at the same time made an oral motion to direct a verdict in their favor. Both requests for directed verdicts were denied by the court. At the conclusion of all of the evidence, the appellee filed another motion for a directed verdict in its favor, which instruction the court gave and, in accordance with such instruction, the jury returned a verdict for the appellee. During the pendency of this action, George H. Denison, one of the...