Littleton, Carroll & Co. v. The People's Bank of Ayershire

• Decision Date: 01 June 1895
• Parties: LITTLETON, CARROLL & COMPANY, Appellants, v. THE PEOPLES' BANK OF AYRSHIRE, IOWA, S. L. CLARK, JOHN CALVIN, AND M. L. ROCK
• Court: Iowa Supreme Court

63 N.W. 666

95 Iowa 320

LITTLETON, CARROLL & COMPANY, Appellants, v. THE PEOPLES' BANK OF AYRSHIRE, IOWA, S. L. CLARK, JOHN CALVIN, AND M. L. ROCK

Supreme Court of Iowa, Des Moines

June 1, 1895

Appeal from Palo Alto District Court.--HON. GEORGE H. CARR, Judge.

Plaintiffs a copartnership engaged in the purchase and sale of live stock in the city of Chicago, state their cause of action in substance as follows: That the defendant bank is a copartnership, composed of the defendants Clark and Calvin doing a general banking business at Ayershire, Iowa; Calvin acting as president, and Clark as cashier thereof. That on January 27, 1893, defendant Rock executed a draft as follows "People's Bank, Ayershire, Iowa January 27, 1893. No. 506. Pay to the order of S. L. Clark, Cash'r, $ 2,230.00 (twenty-two hundred and thirty dollars). To Littleton, Carroll & Co., Union Stock Yards, Chicago, Ill. M L. Rock." That the defendant bank, by its cashier, indorsed and forwarded said draft through other banks for collection. That, in order to induce payment of said draft by the plaintiffs, said bank, by its cashier, wrote and forwarded to plaintiffs a letter as follows: "Ayershire, Iowa January 27, 1893. Littleton, Carroll & Co., Union Stock Yards--Gentlemen: Mr. M. L. Rock has drawn on you to-day $ 2,230.00. Will ship you next Monday night, or Tuesday morning, one car of hogs and one of cattle. Cattle are good. Yours respectfully, S. L. Clark, Cashier." Plaintiffs allege that said draft was not drawn in consideration of any existing indebtedness, but upon the consideration expressed in said letter; that, after the receipt of said letter, said draft was presented for payment, and "that, relying upon the contract, agreement, promise, and representation" of the said bank therein, plaintiffs accepted and paid said draft; that, of the stock agreed to be shipped in payment of said draft, only one car of hogs was shipped to plaintiffs, the proceeds of which amounted to one thousand and twenty-six dollars and sixty-one cents; that they received for further credit on said payment of said draft six hundred and twenty-two dollars and twenty-five cents, and that there remains due to plaintiffs five hundred and eighty-one dollars and fourteen cents; that the car of cattle promised in said letter was never shipped to plaintiffs. They ask judgment against the defendants for said balance, with interest. The defendant Rock did not appear to the action. The other defendants demurred to the petition, "on the ground that the same does not state facts entitling the plaintiffs to the relief demanded, in this: The same does not allege any contract or promise to pay to the plaintiffs the sums of money sued for herein, and does not allege any protest or notice of nonpayment that would be sufficient to bind these defendants in any event." The demurrer was overruled, to which the defendants appearing excepted. Thereafter they answered, admitting the execution of the draft, and sending the letter as alleged, and alleging that the letter was merely a notice, sent at the request of Rock, that he had drawn the draft, and "had shipped to plaintiffs certain cars of stock then loaded and billed to plaintiffs." They allege that the same was an ordinary bank transaction, and that they in no manner guaranteed payment or became liable to plaintiffs. They allege that certain car loads of hogs and cattle were loaded at Ayershire by Rock, and consigned to plaintiffs; that afterwards, without defendants' knowledge, Rock changed the consignment of certain of the cars of cattle to another commission house in Chicago; but after the arrival of said cattle in Chicago, said Rock tendered the same to the plaintiffs, who declined to receive them, or to apply the same to the credit of Rock upon said draft. Plaintiffs, in reply, say that the issues tendered by said answer, except the allegation that the cattle were tendered to the plaintiffs, were fully determined on the demurrer. Upon these issues thus joined, the cause was tried to a jury; and, at the conclusion of the evidence for plaintiffs, the court, on motion of the defendants, directed the jury to find for the defendants, and entered judgment accordingly. Plaintiffs appeal.

Affirmed.

Botsford, Healy & Healy and Thomas O'Connor for appellants.

Geo. E. Clark for appellees.

Given C. J. Deemer and Kinne, J. J., dissenting.

OPINION

Given, C. J.

I.

Appellants contend that the court erred in directing a verdict for the defendants for two reasons, namely, that, by the ruling on the demurrer, it was determined and adjudicated that defendants were liable upon said...