Lee v. Coon Rapids Nat. Bank

• Decision Date: 13 December 1913
• Parties: LEE v. COON RAPIDS NAT. BANK ET AL.
• Court: Iowa Supreme Court

166 Iowa 242

144 N.W. 630

LEE

v.COON RAPIDS NAT. BANK ET AL.

Supreme Court of Iowa.

Dec. 13, 1913.

Appeal from District Court, Carroll County; F. M. Powers, Judge.

Action at law. The opinion states the material facts. Affirmed in part, and reversed and remanded in part.O. M. Brockett, of Des Moines, and Lee & Robb, of Carroll, for appellant.

B. I. Salinger and L. H. Salinger, both of Carroll, for appellees.

WEAVER, C. J.

The plaintiff alleges that on July 13, 1909, one Lafayette Lee made and delivered to him his negotiable promissory note for the sum of $1,444.55, payable 90 days after date, with interest at the rate of 6 per cent. He further alleges that he never parted with the ownership of said note, and the same is due and wholly unpaid; that at some time prior to November 5, 1909, the defendants in some manner wrongfully obtained possession of said note and wrongfully presented the same to the maker, falsely representing that the defendant bank had become the owner thereof and by such wrongful means induced the maker to pay over to the bank the amount thereof, principal and interest, which money the bank wrongfully converted to its own use and refuses to pay or account therefor to the plaintiff. By an amendment to his petition plaintiff further alleges that the note so wrongfully taken possession of and converted by the defendant bank was of the full value of $1,444.55, with the accrued interest thereon, and, at the time the bank so wrongfully demanded and received payment of said note, it canceled the same and delivered it up to the maker. The defendants admit the corporate capacity of the Coon Rapids National Bank and deny all other allegations of the petition. Trial was had to a jury. At the close of the evidence on part of the plaintiff, the court sustained defendants' motion for a directed verdict in their favor. From this ruling and the judgment entered on the directed verdict, the plaintiff appeals.

The evidence tended to show that on July 13, 1909, Lafayette Lee made to his brother A. Lee, plaintiff herein, a promissory note, due in 90 days, for the principal sum of $1,444.55, and at the same time made to another brother John Lee his other promissory note for a like amount and upon like terms. The plaintiff, A. Lee, was a resident of Oklahoma. Lafayette Lee, the maker of the note, was a resident of Giltner, Neb., and John Lee, payee of the last-mentioned note, a resident of Coon Rapids, Iowa, and president of the defendant bank. Some time after these notes were given, the plaintiff sent the note held by him to his brother John Lee, at Coon Rapids, for collection. He did not expect the collection to be pressed. He knew that Lafayette expected to sell some land and that payment of the note was not likely to be made until such sale was accomplished. The note was payable to the plaintiff's order and was not indorsed by him. Later John Lee became involved in bankruptcy proceedings, and the plaintiff, hearing of his embarrassed condition, came to Iowa and upon investigation found that the note which he had sent his brother for collection, together with the similar note made to John Lee, had in some way come into the bank's possession and by it had been sent to a Nebraska bank for collection, and both notes had been paid by the maker and the instruments delivered up to him. The manner of said collection is shown to have been as follows:

On October 14, 1909, the defendant bank, by its cashier, sent a communication to the Citizens' Bank at Giltner, Neb., as follows: “Coon Rapids National Bank. Capital $25,000.00. John Lee, President. W. W. Wine, Vice President. T. C. Lundy, Cashier. Directors: John Lee, T. C. Lundy. W. W. Wine. E. Conner. L. Parker. Coon Rapids, Iowa, Oct. 14, 1909. The Citizen's Bank, Giltner, Neb.--Gentlemen: Inclosed you will find two notes of $1,444.55 signed by Lafayette Lee, which we desire to have collected at once and remit proceeds to us at your very earliest date. Yours very truly, T. C. Lundy, Cashier.”

The notes inclosed were those above described. The one payable to plaintiff appeared to bear an indorsement as follows: “A. Lee, by J. Lee”--and the other payable to John Lee was indorsed: “John Lee, without recourse.” Plaintiff testifies that the indorsement of his name by J. Lee upon the first-mentioned note was wholly without authority. In November following, the notes being unpaid, A. Brutsche, as the accredited agent of the defendant bank, went to Giltner and presented to the Citizens' Bank a letter or order from the Coon Rapids bank as follows: “Coon Rapids, Iowa, Nov. 3, 1909. The Citizens' Bank, Giltner, Neb.--Gentlemen: Please deliver to the bearer A. Brutsche, the Lafayette Lee notes sent you by registered letter and receipted for by you on the 18th of Oct. and this is your authority for so doing. Any favor shown Mr. Brutsche, will be appreciated by us. He is, or has the power to act for this bank. We wish you would assist him to settle this deal. Yours very truly, T. C. Lundy, Cashier. E. Conner, Pres.”

Brutsche offered to sell the notes, but, a purchaser not being at once found, he visited the maker, Lee, demanded payment of the notes, and threatened immediate suit. On the next day the said Lee went to the bank of Giltner, made arrangement to borrow the amount needed by him, and thereupon paid the money over to the bank and took up the notes. It also appears that at that time the said Lafayette Lee was solvent and financially good for the amount of said indebtedness. The net amount of the collection was then paid or turned over by the Giltner bank to Brutsche in the form of Chicago exchange. At some time before the Giltner bank delivered up the notes to Lafayette Lee, they were each indorsed by Brutsche as follows: “Without recourse on A. Brutsche, Agent for Coon Rapids National Bank.” When these facts became known to the plaintiff, his attorney, acting in his behalf, visited the office of the Coon Rapids National Bank and demanded payment of the money which had been collected on the note owned by the plaintiff. Mr. Brutsche and other officers of the bank being present answered the demand by a refusal to pay, saying that the note had been indorsed without recourse, and the attorney would have to go after the Giltner bank or somebody else, and that if suit was brought against the Coon Rapids bank they “would beat it.”

It may here be said that some of the testimony above recited (which was all or mostly all taken in the form of depositions) was ruled out upon the defendants' objections. We think, however, it was all competent and material and should have been admitted. The defendants offered no testimony whatever, and the vital question presented by the appeal is whether, taking the testimony offered by the plaintiff and giving it the most favorable construction it will reasonably bear in support of plaintiff's claim, it would be sufficient to sustain a verdict in his favor.

If there be any reasonable doubt that upon the undisputed facts plaintiff shows himself entitled to recover, it must be because there is some fatal defect in his petition or because honesty in business has not yet reached the dignity of legal obligation.

[1] Concerning the petition considerable is said in argument whether, as a legal proposition, it states a claim for the conversion either of the money collected thereon from the maker or of the note itself. We think it entirely unnecessary to befog the case with technical discussion of the law of pleading. It is enough that in this state all “forms of action” are abolished (Code, § 3426), and all that is necessary for one who invokes the power of the court to protect a right or redress a wrong is that he shall make a plain statement of the facts, avoiding mere legal conclusions, and he may recover thereon whatever the law will allow either for breach of contract or for tort without reference to the name or form of action which might have been necessary or available under the ancient practice. Mentzer v. Tel. Co., 93 Iowa, 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294.

[2] In order to recover, no matter how much he has alleged, he is bound to prove only such allegations or so much of the alleged facts as will entitle him to the recovery or relief asked for. Code, § 3639.

[3] Where the petition alleges in a single count two states of facts, upon either of which defendant would be liable, and some of its averments, while material to one, are redundant as to the other, failure to prove the latter, where right of recovery is shown without such facts, will not defeat the recovery. Way v. Railroad Co., 73 Iowa, 463, 35 N. W. 525. See, also, Knapp v. Cowell, 77 Iowa, 528, 42 N. W. 434.

[4] The allegations of the petition, as amended in this case, state facts sufficient, if proved, to sustain a recovery by the plaintiff as upon an implied promise to pay or account for the money collected upon the note owned by him. It also alleges facts which would sustain a recovery for the conversion of the note itself. These different allegations do no more than state or describe successive steps in the accomplishment of the same wrong--the wrongful assertion of ownership over the property of plaintiff, the wrongful conversion of that property into money, and the refusal upon demand to make it good to the plaintiff.

[5] It is said for the appellees that there is no proof how the note came into the possession of the defendant bank. None is necessary. When plaintiff shows that he never parted with the ownership of the note and never indorsed it or gave John Lee authority to indorse it in his name, and that note is found in the hands of the bank, it is none the less plaintiff's property, and, prima facie at least, he is entitled...