Leonard v. Burlington Mutual Loan Ass'n

• Decision Date: 06 April 1881
• Citation: 8 N.W. 463,55 Iowa 594
• Parties: LEONARD v. THE BURLINGTON MUTUAL LOAN ASSOCIATION
• Court: Iowa Supreme Court

8 N.W. 463

55 Iowa 594

LEONARD v. THE BURLINGTON MUTUAL LOAN ASSOCIATION

Supreme Court of Iowa, Des Moines

April 6, 1881

Appeal from Des Moines District Court.

ACTION at law. Trial by the court, judgment for the plaintiff, and defendant appeals.

AFFIRMED.

Hall & Huston, for appellant.

Blake & Hammack, for appellee.

OPINION

SEEVERS, J.

I.

I Heider was secretary of defendant, and plaintiff claims to have deposited with him, as such, certain money for which Heider executed on behalf of defendant, as is claimed certain instruments of writing, whereby the defendant became bound to pay the plaintiff three thousand dollars, with ten per cent interest thereon, to be paid monthly.

The plaintiff seeks in his petition to recover on said instruments, and in an amendment thereto for money had and received. The answer consisted of a denial, and alleged that: "Heider had no authority to borrow said money and his acts in the business were null and void. That said Heider was a defaulter to the defendant, and was not able to account for the moneys which he had received, and that he without authority made the said loan, for his own use and benefit, and not that of defendant, and defendant denies it received and had said money, or that said money was received by defendant as alleged in plaintiff's amendment to petition; and defendant avers that, if the said Heider placed said money in the funds of said defendant, he did so as his own money (and for the purpose of making good to that extent his shortage)."

On motion of the plaintiff the portion of the answer enclosed with brackets was stricken out.

The court found for the plaintiff on the amendment to the petition, for money had and received.

I. It is assigned as error that the court erred in striking out portions of the answer. The material question, so far as the count for money had and received is concerned, was whether the defendant received the plaintiff's money, or that of Heider, and such issue is sharply presented by the answer as it stood at the trial. Any evidence bearing on such issue was material, and, therefore, evidence was admitted showing Heider was a defaulter, and such must have been regarded by the court below as an established fact, and it will be so conceded on this appeal. No prejudice could, therefore, have possibly resulted from the ruling of the court sustaining the motion to strike.

II. As the court found for the plaintiff only for money had and received, and as this is the money for which the written instruments were executed, it amounts to a finding that the plaintiff was not entitled to recover on such instruments. The error said to have been caused by the admission of the instrument in evidence is not material, because the plaintiff has not appealed and we shall not consider any questions except such as legitimately arise on the appeal of the defendant. Under the issue made in the pleadings the material question for determination may be thus stated. Did the defendant have and receive the plaintiff's money or that of Heider. In considering this question the several errors discussed by counsel will be disposed of.

As the money was placed in the hands of Heider by the plaintiff at several different times, counsel for the appellant insist that if defendant is responsible for a part, it does not follow it is for all. In this we concur, and, therefore, the only way to satisfactorily dispose of the questions before stated is to briefly refer to and discuss the evidence bearing on each separate sum of money, premising, however, that the well settled rule must prevail, which is, that the finding of the court has the force and effect of a verdict of a jury. If, therefore, the evidence be conflicting, the finding will not be disturbed. Nor do we weigh the evidence as we would do if the case was triable anew instead of on errors assigned. The evidence is not seriously conflicting, and if the court has erred in its conclusions of law, based on the conceded or undisputed facts, such error can be corrected on this appeal. Without doubt the plaintiff in good faith gave Heider as secretary of defendant the amount of money sued for, and that he supposed he was loaning it to the defendant.

It was the duty of Heider to receive all money paid unto the treasury of the defendant, and the evidence shows the business of the association was largely intrusted to him. He was the general manager thereof. The sources from which money was obtained, as defined in the charter and by-laws of defendant, were in certain payments made at stated periods by the stockholders, loaning the same, receiving interest and premiums thereon. No express power was given any officer, or all of them combined, to borrow money.

The first money placed in Heider's hands by the plaintiff was $ 800 on January 23, 1874. This money was deposited by Heider to his individual credit in the First National Bank on the same day he received it. The plaintiff sought to show by Heider what he did with the money so deposited. To this defendant objected that such deposit was a conversion, and it was therefore immaterial what Heider did with the money after it became the property of the bank in which it was deposited. While it is true as between Heider and the bank the money deposited became the property of the latter, and conceding the plaintiff could not have followed it and have recovered of the bank, still we think it was competent for the plaintiff to show, if he could, there was no intention on the part of Heider to convert it to his own use. Heider was unable to state why he had made the deposit to his individual credit. But he testified that on January 26 and 27, 1874, he drew his individual checks on the fund to his credit in bank, and which had been increased by the deposit of the plaintiff's money, in payment of loans made by the defendant, and thus it is if at all the plaintiff's money was placed in the funds of the association. No entry was made of this transaction on the books or records of the defendant until May, 1876, and this is true as to all other money received of plaintiff by Heider. If there was no other evidence bearing upon the question before us it would be difficult to say the money paid out on the checks of Heider belonged to, or was the property of, the plaintiff. We incline to think it could not be so regarded.

It was Heider's duty, and he made monthly reports to the defendant's board of directors of the money received loaned, or otherwise disposed of. The money received of the plaintiff should, we suppose, have appeared in the February report if placed in the funds of the association. The report was silent on this subject, but it appeared therefrom that more money had been appropriated, that is loaned and paid out for legitimate purposes, than had been received. Such amount was $ 531.19. The March report, however, showed there had been appropriated by the defendant money belonging to the plaintiff to the amount of $ 813.32. The $ 13.32 being interest on $ 800. The April report showed a payment to plaintiff...