Findley v. Cowles

• Decision Date: 22 January 1895
• Parties: FINDLEY v. COWLES ET AL.
• Court: Iowa Supreme Court

93 Iowa 389

61 N.W. 998

FINDLEY

v.COWLES ET AL.

Supreme Court of Iowa.

Jan. 22, 1895.

Appeal from district court, Clark county; H. M. Towner, Judge.

This action was commenced November 20, 1889, against C. W. Cowles, George H. Cowles, and others. C. W. Cowles alone was served and appeared. Before issue was joined, C. W. Cowles was adjudged insane by the court of Nebraska, and Ida C. West appointed guardian of his person and property. On April 29, 1890, in obedience to an order of the district court of Clark county, Iowa, said guardian appeared and answered. On May 19, 1890, plaintiff filed an amendment to his petition, alleging the death of George H. Cowles; that his estate was insolvent; and that C. W. Cowles had removed from the state; and asking an attachment against the property of C. W. Cowles, which was issued, and levied upon certain property. At the February term, 1891, the case was tried upon the issues joined as an equity cause, and taken under advisement. On the 28th day of April, 1892, and before a decision had been rendered, the death of C. W. Cowles being suggested, George L. Moore, executor, was made a party, and answered, denying generally the allegations of the petition. On July 11, 1892, judgment was entered in favor of the plaintiff for $13,600, debt, and $176, attorney's fees and costs, with 8 per cent. interest from date of judgment; and it was ordered that said executor pay said amount as a claim against said estate. The issues and facts sufficiently appear in the opinion. The defendant George L. Moore, executor, appeals. Affirmed.J. W. West and McIntire Bros. & Jamison, for appellant.

M. L. Temple and John Chaney, for appellee.

GIVEN, C. J.

1. This action, as originally brought, was to charge C. W. Cowles with an indebtedness to plaintiff in the sum of $10,000 and interest, and, as it now stands, it is to charge the same to his estate. The controversy is solely between the plaintiff and the estate, and what is alleged as to the original defendants except C. W. Cowles is, so far as pertinent, only material as evidence. The issues between the plaintiff and C. W. Cowles will appear from the following facts, which are shown by the evidence: Prior to February, 1886, G. H. Cowles, son of Dr. C. W. Cowles, then residing in Van Buren county, resided at, and was carrying on a private bank at, Osceola. In February, 1886, said bank was incorporated under the laws of the state as the Osceola Bank, with a paidup capital stock of $25,000, of which Dr. Cowles held $15,000. John Richards was president, G. H. Cowles vice president, and C. H. Currier cashier, and continued to occupy such positions during the time the bank did business. These officers, with others, all but one of whom resided at or near Osceola, constituted the board of directors. G. H. Cowles was the active manager of the business of the plaintiff bank. Prior to the incorporation of this bank, the Lucas Land & Live-Stock Company was incorporated, with $30,000 capital stock, of which G. H. Cowles held $29,700, and of which company he was president. Some time after the bank was incorporated, G. H. Cowles placed therein two certificates, for $5,000 each, of the capital stock of said land and live-stock company, and was credited therefor at the face value thereof. Later he deposited and took credit for $19,700 more of the stock of said land and live-stock company. The auditor of state, on report of the bank examiner, objected to the bank carrying even the $10,000 of said stock as assets. As this controversy rests upon what took place with respect to the two certificates for the $10,000 of stock, it is not material, nor does it fully appear what disposition was made of the $19,700 of stock. To meet the objection of the auditor, G. H. Cowles placed in the bank two promissory notes, signed C. W. Cowles, dated January 2, 1887, for $5,000 each, with 8 per cent. interest, payable to the Osceola Bank, 12 months after date. Upon making this deposit, said two certificates were withdrawn from the bank, and said notes carried as assets. The dates in the entries of bills receivable show that this transaction took place on April 1 or 2, 1887. On January 5, 1888, G. H. Cowles withdrew these notes from the bank, and deposited said two certificates for $10,000 in lieu thereof, the notes being entered on bills receivable as “Paid, Jan. 5, 1888,” though no other payment was made than the return of said shares of stock. At the time the notes were taken up and the stock returned to the bank, the stock was of but little value. The account of G. H. Cowles with the bank was overdrawn; hence it is apparent that the bank paid to him $10,000 on account of the two stock certificates placed to his credit, and that they became the property of the bank.

While it does not appear under what form of authority G. H. Cowles acted for his father, it is evident that he exercised general control over his father's business in connection with this bank, and in Clark county, and that his acts were either authorized or ratified. It is reasonably clear that G. H. Cowles had the consent of his father to act for him in the conduct of his business in Clark county. There can be no doubt but that two notes, such as those set out, existed, and that they bore the name C. W. Cowles. While there is no direct evidence as to the signing of said notes, we must conclude that they were signed by C. W. Cowles or by his authority, or that G. H. Cowles, or some one with his knowledge, committed a forgery. It is apparent from the business and other relations of G. H. and his father that Dr. Cowles would not have hesitated to sign such notes at the request of his son under the circumstances and for the purpose for which these notes were executed. We are satisfied that C. W. Cowles signed the notes at the request of G. H. Cowles, with the understanding that they were to be placed in the bank as part of its assets, in lieu of the $10,000 objectionable stock, and that they were to be taken up when it could be done without invoking opposition from the auditor by returning the stock to the bank. Such was manifestly the purpose of G. H. Cowles, and we do not doubt that he so explained it to his father. The conclusion is...