Knapp v. Sioux Falls Nat. Bank

• Decision Date: 13 October 1888
• Citation: 40 N.W. 587,5 Dak. 378
• Parties: Knapp v. Sioux Falls Nat. Bank.
• Court: South Dakota Supreme Court

40 N.W. 587

5 Dak. 378

Knapp

v.Sioux Falls Nat. Bank.

Supreme Court of the Territory of Dakota.

October 13, 1888.

Appeal from district court, Minnehaha county; Spencer, Justice.

This is an action by Harriet Knapp against the Sioux Falls National Bank to recover $385. Plaintiff had assumed a mortgage upon certain land in favor of one John B. Trevor, upon which foreclosure proceedings were begun by A. M. Flagg, attorney for Trevor. The plaintiff gave her agent, Thomas Reed, the necessary money, and instructed him to satisfy the mortgage. He called on Flagg for that purpose, but, being unwilling to pay Flagg the money without receiving a satisfaction piece executed by Trevor, he and Flagg went together into the office of defendant, where Reed deposited the money in question, $385, in the bank, for which the following certificate was issued:

“No. 223.

Sioux Falls, Dak., July 27, 1883.

“(See instructions attached.)

This certifies that Thos. Reed has deposited in the Sioux Falls National Bank three hundred eighty-five and 0-100 dollars. Credit of himself or A. M. Flagg; payable in bankable currency upon return of this certificate properly indorsed.

$385.

C. L. Norton, Cashier.”

Instructions attached to certificate: “$385, deposited by Thomas Reed, to be paid over on presentation of a duly-executed satisfaction of the mortgage described in the annexed printed notice, from John B. Trevor, mortgagee.”

Flagg afterwards gave the bank a satisfaction piece purporting to be executed by John B. Trevor, and apparently answering all the requirements of the contract indorsed on the certificate of deposit, upon receiving which the bank paid him the money. The court instructed the jury to find for defendant. Plaintiff appeals.

Bailey & Davis, for appellant. H. H. Keith, for respondent.

FRANCIS, J., ( after stating the facts.)

The contention of counsel for the appellant is summed up in their insistment that “the court erred in sustaining the objection to the question, ‘Since then has Mrs. Knapp paid the mortgage again?’ and in excluding testimony upon that subject;” that “the evidence upon material facts was contradictory, and should have been submitted to the jury;” and that “the court erred in withdrawing the case from the consideration of the jury, and directing them to return a verdict for the defendant;” and “in rendering judgment on said verdict for the defendant.” Their contention falls, on being brought face to face with the record. From an inspection of the record,-which, by stipulation of counsel and allowance of the court, contains, as part of the bill of exceptions, “a fair and correct statement of all the evidence introduced” at the trial,-we are of the opinion that whatever right of action the plaintiff (appellant) might be permitted to maintain in the nature of assumpsit, or for negligence of the defendant bank as bailee, the said plaintiff, in the trial of this action against said defendant bank in the district court, failed to prove the cause of action stated in her complaint, and did not make against said defendant bank a prima facie case of conversion of either the money deposited with it or the mortgage satisfaction piece.

Counsel for appellant urge that “the testimony offered by the plaintiff to show that she has since been compelled to pay the money (embodied in said question: ‘Since then has Mrs. Knapp paid the mortgage again?’) was admissible upon the question of damages for the conversion of the satisfaction.” A complete answer to this is found in the fact that the complaint neither alleges the conversion of the satisfaction piece, nor claims damages for such conversion; and, we may add, the rejection of this question worked no injury to the plaintiff, as she failed (as already observed) to make even a prima facie case of conversion of the satisfaction piece or of the money, necessary to be made out in order to render the question of damage or the measure of damage material. As to the admissibility of the said question, ruled out in the district court, had the issue and the evidence made a case of conversion, either of the money or of the satisfaction piece, or as to the damage or the measure of damage, in that event no decision is essential, and this court is therefore silent with respect thereto.

As the case stood when the lower court directed a verdict for the defendant, there was no conflict of testimony on material points. The testimony offered on behalf of the plaintiff, (appellant,) not contradicted, but corroborated and strengthened, by that presented for the defendant, (respondent,) shows that the defendant received the money and paid it out upon a satisfaction piece in apparent accord with the instructions given when the money was deposited. Counsel for appellant press the point that there was a...