Ryan v. Cooper

• Decision Date: 20 October 1925
• Docket Number: 36808
• Citation: 205 N.W. 302,201 Iowa 220
• Parties: H. D. RYAN et al., Appellees, v. E. C. COOPER, Appellant
• Court: Iowa Supreme Court

205 N.W. 302

201 Iowa 220

H. D. RYAN et al., Appellees, v. E. C. COOPER, Appellant

No. 36808

Supreme Court of Iowa, Des Moines

October 20, 1925

REHEARING DENIED JANUARY 22, 1926.

Appeal from Jasper District Court.--H. F. WAGNER, Judge.

THE plaintiffs brought an action upon a promissory note. The defendant presented a defense of partial payment to the amount of $ 800, and a counterclaim for $ 600 damages for false representations not connected with the execution of the note sued on. At the close of the evidence, the trial court directed a dismissal of the counterclaim for damages, and submitted to the jury the defense of partial payment. There was a verdict and judgment for the plaintiffs, and the defendant appeals.

Affirmed.

Campbell & Campbell, for appellant.

Cross & Hamill, for appellees.

EVANS J. FAVILLE, C. J., and ALBERT and MORLING, JJ., concur.

OPINION

EVANS, J.

I.

The plaintiff H. D. Ryan was the payee of the note sued on. It was given by the defendant for the purchase price of an automobile, and was for $ 1,800. The defendant claims that he made a payment of $ 800 thereon, on May 13, 1920. We will consider first the questions which arise on the trial of that issue. It appears without dispute that, prior to May 13 1920, the note in suit had been deposited by Ryan, as collateral, with the State Bank of Prairie City. On the date named, the defendant drew his check for $ 800 on the First National Bank of Prairie City. This check was drawn payable to H. D. Ryan, and was left with Buckley, cashier of the State Bank of Prairie City. The defendant testified that he instructed Buckley to apply this check upon the note in suit. No such application was made of the check. Buckley, as a witness, explained this check transaction as follows:

"* * * May 13, 1920, Cooper had some money in First National Bank which he wanted to transfer to his checking account in our bank, but didn't want to let the other bank know he was checking it directly to our bank, and he asked could I make the check to H. D. Ryan, which was done [Exhibit 1], to blind the other bank as to where the money was going. The check was written at our bank, and I called Mr. Ryan about it and explained the circumstances to him, and he indorsed the check, and I passed the check to Mr. Cooper's account on his ledger page."

In corroboration of this testimony, the witness produced the bank books showing the ledger pages of the defendant's account. The defendant had been a regular customer of the bank for many years. These books showed that a credit of $ 800 to the defendant was entered in his account on the date named, and for the check in question. The errors assigned by the appellant upon this branch of the case challenge the competency of the bank books in this connection, on the ground that some of the entries appearing therein were made by other persons than the witness. There are several patent reasons why the point made is not well taken. Before offering such pages, the witness identified the book, and testified without objection that the entries therein were correct, to his personal knowledge, at the time they were made, and that the item of $ 800 appearing thereon to the credit of the defendant was entered by the witness personally. This was the one item material to the controversy. Other items were material only as identifying the current account of the defendant. There was no error in admitting the book for the purpose of showing this credit in the defendant's account.

II. Complaint is made of Instruction 5 given by the court: "The burden is upon the defendant to establish his claims as to said partial payment of $ 800 by a preponderance of the evidence. Therefore, if you find from a preponderance of the evidence that the check Exhibit No. 1 J. O. L. was delivered by the defendant to John R. Buckley, cashier of the State Bank of Prairie City, with intention on his part that the said check be applied upon the note Exhibit 'A' J. O. L., and with direction or instruction by the defendant to the said John R. Buckley received said check for H. D. Ryan, or that H. D. Ryan received the money represented by said check, then you will be warranted in finding that, on May 13th, 1920, the defendant made a payment of $ 800 on the note Exhibit 'A' J. O. L. If you fail to so find, then you will not be warranted in finding a payment of $ 800 on said note on said date."

The complaint is that undue burden was laid upon the defendant to prove that H. D. Ryan got the benefit of the check.

It is true that the indorsement of the check by H. D. Ryan was sufficient presumptive evidence that he got the benefit of the check. But in the light of the whole record, the instruction was rather more favorable to the defendant than he was entitled to. Ryan testified that he indorsed the check at the request of Buckley for the purpose indicated in Buckley's testimony, and that he had no conversation at all with the defendant on the subject. After Buckley and Ryan had testified on this subject, the defendant was called to the witness stand. His testimony was confined to other subjects than that of the $ 800 check. He made no response to the testimony of Buckley or to that of Ryan. Such testimony of these witnesses was therefore undisputed, unless it could be said that the defendant had disputed the same in advance, when on the witness stand in his main case. It appears from his cross-examination at that time that he had a pass book with the bank, but he did not produce it. Manifestly, such pass book would...