Renland v. First Nat. Bank

• Decision Date: 15 October 1931
• Docket Number: 6776.
• Citation: 4 P.2d 488,90 Mont. 424
• Parties: RENLAND v. FIRST NAT. BANK OF GRASS RANGE et al.
• Court: Montana Supreme Court

4 P.2d 488

90 Mont. 424

RENLAND v. FIRST NAT. BANK OF GRASS RANGE et al.

No. 6776.

Supreme Court of Montana

October 15, 1931

Rehearing Denied Oct. 30, 1931.

Appeal from District Court, Fergus County; Edgar J. Baker, Judge.

Action by T. B. O. Renland against the First National Bank of Grass Range and another. From a judgment in favor of defendants plaintiff appeals.

Affirmed.

Ralph J. Anderson and Wm. M. Blackford, both of Lewistown, for appellant.

Ayers & Ayers and Belden & De Kalb, all of Lewistown, for respondents.

GALEN J.

This action was instituted to recover from the defendants the excess of moneys collected by the defendants over and above the reasonable value of their services in presenting and collecting from the administrator of the estate of John J McDonnell, deceased, upon a promissory note, the sum of $4,433.33; it being alleged in the plaintiff's complaint that the defendants, on January 14, 1929, deposited to plaintiff's account only the sum of $3,363.75, and retained for their services the sum of $1,236.25, without reasonable cause or excuse, and that while the defendants are entitled to a reasonable amount for services by them rendered in making such collection, they are not entitled to any more and that the sum of $50 would be a fair charge for the services so rendered. Judgment was prayed for the sum of $1,236.25, less the sum of $50 to be deducted as a reasonable charge for such services, with interest from January 14, 1929, and costs of suit. By answer, the defendants denied any indebtedness to the plaintiff and affirmatively alleged that the plaintiff requested the defendants to present his claim on the note to the administrator of the estate, and not being experienced in such matters, they delivered the note to Roy E. Ayers, a licensed and qualified attorney, for collection, advised the plaintiff thereof, and received the plaintiff's approval, and that Ayers undertook and agreed to collect the note for the sum of $75, plus 25 per cent. of the amount collected, and so advised the plaintiff; in consequence the deduction after the indebtedness had been paid. Issue was joined by reply denying the material allegations of the defendants' affirmative defense. The cause was regularly tried to a jury, which rendered verdict in favor of the defendants. A motion for a new trial was made and denied. Judgment was duly entered upon the verdict, from which the plaintiff has appealed.

The plaintiff's several assignments of error raise no question as to the sufficiency of the pleadings or of the evidence, the only matters presented being as to the admissibility of certain evidence and the propriety of certain instructions to the jury given and refused by the trial court. The determinative question in disposition of this appeal presented by the plaintiff's assignments of error is whether positive testimony of nonreceipt of a letter properly addressed, stamped, and posted in the United States mail so overcomes the presumption of its delivery that the jury may not take such assumption of law into consideration in resolving the weight and effect to be given to evidence on the subject.

From the evidence it appears that the plaintiff was doing his banking business with the defendant bank; that he owned a promissory note executed to him by one Jack McDonnell for the sum of $4,000, interest bearing at the rate of 7 per cent. per annum, dated May 16, 1920, and payable one year after date. Payments on the note were made down to July 1, 1927. Needing some money, or for other reason not clear, some years before July 1, 1927, the plaintiff indorsed the note "pay to no one else except Jack McDonnell" and delivered the note into McDonnell's possession; however, interest was subsequently paid and indorsed upon the note.

Some time prior to July 9, 1927, the plaintiff asked the advice of the defendant Miles, president of the bank, respecting the note then in Jack McDonnell's possession, as the plaintiff was worried about the indebtedness, and Miles advised the plaintiff by letter of date July 9, 1927, as follows: "It is rather unusual for a party to have in his possession a note he owes as he could easily destroy the note or claim it was paid and if you could not produce the note you would have no defence. As this note involves $4000.00 it seems to me I would get this fixed up at once if I had to make a trip to Lewistown to get possession of it. Is the note past due? If it is it cannot be transferred to a third party, the proper thing to do if it is would be to get a renewal or get the original note and bring suit on it yourself. In any event I would spend the time to get it in shape, or something in my possession to show that McDonnell is indebted to you. Will be pleased to help you in any way we can. If the note is not past due and you can get it I think I can then assist you."

On November 28, 1927, the plaintiff wrote the defendant bank as follows: "Jack McDonnell of Lewistown returned that $4000.00 note. Am afraid the shack might catch fire and burn the note. If I now lose the note, I am afraid it would be the end of it; as he got sore for I wanting to keep the note. Would the Bank hold the note so it would not be destroyed by fire?"

On November 29, 1927, the defendant Miles replied by letter advising the plaintiff that if he would mail the note to the defendant bank it would gladly safely keep it.

Shortly afterwards the plaintiff sent the note to the defendant bank. On January 28, 1928, the plaintiff wrote to the bank stating that he noticed by the papers that Jack McDonnell was dead and that he was glad that he had obtained possession of the note in time. On March 13, 1928, the plaintiff wrote to the bank making inquiry as to the length of time required to settle the estate of a deceased person, and stated therein that he had written to the deceased's brother Ed., who turned the letter over to lawyer Hopkins, who replied to it, stating that he would send a blank form of claim against the estate for the plaintiff to fill out, but that six weeks had since elapsed without any further word from Hopkins--"could you please give me advice it is hard for me to get to town." On March 26, 1928, the plaintiff made acknowledgment by letter addressed to the bank of receipt of a claim against the estate to be executed and presented to the administrator. On April 14, 1928, the plaintiff wrote the bank stating: "It was a good thing to get some one to look after the McDonnell claim, especially when one knows that gang, and what they have done before. I realize it was bad business; what I wrote on the note. *** Am returning the claim, if you will please continue to look after it."

The plaintiff acknowledged receipt of a letter dated April 6, 1928, from Miles, wherein it is stated: "I enclose herewith receipt from the attorney of the John J. McDonald estate for the claim which I presented for you in the $4000.00 note. I turned this matter over to Ayers & Polutnik of Lewistown. The endorsement which you made on the back of the note, endorsing it back to McDonald was a very serious mistake; however, we will try to get the claim through in full, but I figured it was better to turn this over to an attorney living at Lewistown, who could look after it. There may be some little expense to it, but you had better be to some expense than lose the entire claim." And on cross-examination the plaintiff denied having received defendant's Exhibits No. 9 and No. 10, the former being a letter written by attorney Roy E. Ayers of Lewistown, dated August 5, 1928, and the latter a copy of a letter to Mr. Miles enclosed, stating the conditions under which Ayers would handle the matter as attorney. In defense these exhibits were admitted in evidence upon the testimony of Ayers that he had written such letters which were on the day they were written enclosed in an envelope addressed "to T. B. O. Renland at Cat Creek, Montana, with the proper postage placed upon the envelope, with my return on the corner of the envelope, and on that same day was mailed in the United States Post Office at Lewistown, Montana." They were never returned to the writer.

Defendant's Exhibit No. 9 is a letter advising the plaintiff that his claim against the McDonnell estate had been placed in his (Ayers') hands for collection "by Mr. Miles of the First National Bank of Grass Range." Further, Ayers stated in the letter: "The writer was not in the office when Mr. Miles called, but I have talked with him by phone and have made an investigation in the matter and wrote him today, copy of which letter is herewith enclosed. Please give me such additional information as you have, and complete explanation of that indorsement and the real estate matter."

Exhibit No. 10 reads as follows:

"Roy E. Ayers

Attorney and Counselor at Law

Suite 414-415 Bank-Electric Building

Lewistown, Montana.

April 5, 1928.

Mr. Frank F. Miles,

Grass Range, Montana.

My dear Mr. Miles:

I am sorry that I did not get to see you when you were here last week. From what I have learned about the Renland claim against the McDonnell estate and from what you told Mr. Polutnik when here and what you told me by phone, I conclude that it is a doubtful claim and I am not anxious to prosecute it on a contingent fee. Really it is one of those cases where a man can do a lot of work and in the end have nothing that he can cash in for money.

I have spent some time on the history of this claim and it seems that a real estate deal is at the bottom of it and woven through it. Some time prior to McDonnell giving Renland this note for $4000.00, Renland had agreed to buy a piece of land here in Lewistown from McDonnell and had advanced that sum of money on it, but at that time McDonnell was not in a...