Ritland v. Security State Bank, Radcliffe

• Decision Date: 17 November 1964
• Docket Number: No. 51418,51418
• Citation: 131 N.W.2d 464,257 Iowa 21
• Parties: Howard RITLAND, Guardian of Osa Ritland, aged, Plaintiff-Appellee and Cross-Appellant, v. SECURITY STATE BANK, RADCLIFFE, Iowa, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 464

131 N.W.2d 464

257 Iowa 21

Howard RITLAND, Guardian of Osa Ritland, aged, Plaintiff-Appellee and Cross-Appellant, v. SECURITY STATE BANK, RADCLIFFE, Iowa, Defendant-Appellant.

No. 51418.

Supreme Court of Iowa.

Nov. 17, 1964.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for defendant-appellant.

Larson & Larson, Story City, and Lundy, Butler & Wilson, Eldora, for plaintiff-appellee and cross-appellant.

LARSON, Justice.

This is an action brought in two divisions to recover the face amount of two time certificates of deposit issued by the defendant Security State Bank of Radcliffe, Iowa, on August 13, 1952. Jury being waived, the court found for plaintiff in Division I and for defendant in Division II. Assigned as error is the failure of the trial court to find defendant had proved conclusively that the $9,000.00 obligation had been paid by setoff, and failure to find for it as a matter of law on the $2,000.00 obligation when plaintiff did not deny the written release thereof. Thus, the principal and controlling questions presented by this appeal are whether there is any substantial support for the finding that the $9,000.00 certificate of deposit in Division I 'is a present liability of the said bank', and whether there is substantial support for a finding that the $2,000.00 certificate in Division II had been paid on December 2, 1957. Although the trial court made no findings of fact as required by Rule 179, Rules of Civil Procedure, 58 I.C.A., it is clear the court's conclusions were reached on that basis. We think the record fairly considered would support but not compel a finding that both of these certificates had been paid.

I. It is well settled in this jurisdiction that the finding of a trial judge in jury-waived cases has the effect of a special verdict. Batliner v. Sallee, 254 Iowa 561, 564, 118 N.W.2d 552, and citations. Our function, therefore, is not to weigh the evidence but to decide whether the trial court's finding is supported by substantial evidence. In doing so, we must view the evidence in the light most favorable to the prevailing party below. Ver Steegh v. Flaugh, 251 Iowa 1011, 1022, 103 N.W.2d 718, and citations.

This record discloses that Joseph Ritland resided on a farm near Radcliffe, Iowa, from 1952 until his death on June 29, 1962. On August 13, 1952, the defendant bank issued to him time certificates of deposit payable twelve months from date with interest at two per cent per annum until maturity only, one certificate for $9,000.00 and one for $2,000.00.

After Mr. Ritland's death these certificates were found in his safety deposit box in the Story County State Bank, of Story City, Iowa. They were duly assigned to decedent's aged mother, Osa Ritland, by the executor of his estate, and this action was commenced on February 25, 1963, by her guardian after due demand for payment had been refused.

All of the transactions between the defendant and Joseph Ritland had been conducted on behalf of the bank by Carroll Drake, its president, who died December 31, 1960. Thus, the bank records constitute substantially all the available evidence of those transactions. These records were introduced by defendant to sustain its claim of payment as permitted under Section 622.28, Code of Iowa, 1962, I.C.A. In addition to those exhibits, it appears the bank vice-president, Mr. Thompson, wrote Joseph Ritland about three months after the death of President Drake advising him to bring in the $2,000.00 overdue certificate 'so that we can bring our accounts to date.' Apparently this was not done, as neither certificate was ever presented to the bank by Joseph Ritland. In fact, it appears Ritland had not visited his safety deposit box in the Story County State Bank, where they were found, after September 8, 1956. On December 2, 1957, Joseph Ritland executed and delivered to defendant a release and receipt in full for the $2,000.00 certificate which contained the statement 'that Certificate of Deposit #6773 of the Security State Bank Radcliffe Iowa has been lost.' However, the bank's records did not show it paid.

Under date of December 2, 1957, the bank's records did show an entry in the certificate register indicating payment of the $9,000.00 certificate, and in its Liability Ledger there was an entry on the same date crediting the account of Joseph Ritland with the payment of a note due the bank in the sum of $9,000.00. By its records defendant traced the indebtedness evidenced thereby to the note dated September 12, 1957, payable October 15, 1957, and claims they show conclusively there was in truth and in fact a setoff made on December 2, 1957, involving only the face of each instrument. The 'Time Certificate of Deposit Register' discloses a blurred stamp in the date-paid column of the $9,000.00 certificate appearing to be 'Dec. 1957', over which was handwritten in ink 'Paid Dec. 2nd 57.' There was no entry in the date-paid column of the $2,000.00 certificate, although defendant claims it was also paid December 2, 1957, as evidenced by a duly-executed receipt and release.

Other records of the defendant bank were introduced to show no like sum of $9,000.00 had been received or credited to anyone by the bank on that date, and that such a sum had not been paid out by check, cash, or otherwise on that day. On the other hand, the records showed a $9,000.00 reduction of the bank's certificate liability on December 2, 1957. These records then do tend to prove that Ritland's overdue note for $9,000.00 was paid on December 2, 1957, that the bank's certificate of deposit liability was reduced by that sum on the same date, and that it was reduced by payment or credit to Ritland.

Plaintiff argues that these records are not conclusive of the fact that Ritland owed the bank that sum, that he paid his note by an offset, or that the bank's liability on his $9,000.00 certificate was in fact released. The note, of course, was not produced. True, there was no showing as to when or by whom the date-paid entry on the $9,000.00 obligation was made in the bank's deposit register, and it does not appear the bank's usual course of business was followed when it failed to require either the surrender of this certificate of deposit for cencellation or a receipt and release of it, the procedure followed in paying the $2,000.00 certificate on the same date. Apparently both certificates were 'lost' in the same deposit box and Ritland made no attempt to locate them there at that time. Did this record conclusively prove defendant's affirmative allegation of payment of the $9,000.00 certificate of deposit? We think not. At best it was circumstantial evidence of a setoff.

II. One who pleads and relies upon the affirmative of an issue must carry the burden to prove it. Verdicts are seldom directed in favor of the one upon whom rests the burden of proof. At least, a strong showing is required before this may be done. Barnes v. Gall, 251 Iowa 921, 926, 103 N.W.2d 710; Batliner v. Salles, supra; 88 C.J.S. Trial § 257 g, pp. 667-669; 53 Am.Jur., Trial, § 390, p. 314. Defendant's evidence of payment of the $9,000.00 certificate permissible under Section 622.28 was not sufficient to require a directed verdict. See Miller v. Woolsey, 240 Iowa 450, 35 N.W.2d 584.

III. Section 622.28, Code, 1962, I.C.A., provides:

'Any writing or record, whether in the form of an entry in a book, or otherwise, including electronic means and interpretations thereof, offered as memoranda or records of acts, conditions or events to prove the facts stated therein, shall be admissible as evidence if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness, and if the judge finds that they are not excludable as evidence because of any rule of admissibility of evidence other than the hearsay rule.

'Evidence of the absence of a memorandum or record from the...