Sawin v. Union Bldg. & Sav. Ass'n of Des Moines

• Decision Date: 07 October 1895
• Citation: 95 Iowa 477,64 N.W. 401
• Court: Iowa Supreme Court
• Parties: SAWIN v. UNION BLDG. & SAV. ASS'N OF DES MOINES.

95 Iowa 477

64 N.W. 401

SAWIN

v.UNION BLDG. & SAV. ASS'N OF DES MOINES.

Supreme Court of Iowa.

Oct. 7, 1895.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Action at law to recover a sum of money alleged to have been paid to the defendant, with interest. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Edred S. James and Read & Read, for appellant.

ROBINSON, J.

The defendant is incorporated under the laws of this state as a building and savings association. It has for sale different classes of stock, among which are those named by it “A” and “B.” Provision is made in its by-laws for class A stock as follows: “(1) Any person, upon the payment of one dollar per share, shall receive a certificate for the same known as ‘Class A Stock,’ and thirty days from the date of such certificate, and monthly thereafter until maturity, there shall be due fifty-eight cents per share, and when the said payments, together with the profits and accumulations thereon, shall equal one hundred dollars per share, then the holder thereof shall receive, on the surrender of his certificate, the value thereof in cash. (2) Any person whose shares in class A may have been withdrawn or matured may at any time thereafter retake a like number of shares without the payment of admission fee; or, in case of the maturity of stock, the owner of such stock may have the option of withdrawing his admission fee of $1 per share, and thus terminate his membership.” The provision in the by-laws in regard to class B stock is as follows: “(1) Forty dollars per share, paid in advance, with one dollar per share admission fee, shall entitle any person to a prepaid certificate of one hundred dollars per share, par value at maturity, to be designated as ‘Class B Stock,’ upon which no further payment shall be required, and such shares shall be charged two per cent. per annum of the par value of such stock for expenses.” The plaintiff is a resident of the city of Clinton, and claims to have paid to one S. S. Price, an agent of the defendant in that city, the sum of $225 for five shares of class B stock. A certificate was issued to the plaintiff, but it was for class A stock, and has been returned to the defendant. The plaintiff seeks to recover the amount so paid with interest. Price never accounted to the defendant for the money so received, and has absconded. The defendant denies that the plaintiff purchased class B stock, and denies that Price was authorized to receive the money paid him. The plaintiff recovered the full amount which he claimed.

1. To procure the desired stock, the plaintiff signed an application which proved to be for five shares of class A stock and contains an agreement for the payment by him of an admission fee of $5, and 58 cents monthly. The receipt given by Price showed the payment to him of $225 for five shares. It is clear that a wrong was perpetrated by Price. The defendant claims that Price was a special traveling agent, with prescribed and limited powers only, to take and forward to the defendant, upon blanks furnished by it, written applications for shares of its stock, to collect and receipt for the membership fee of one dollar for each share of stock, and to take and forward to the home office for approval written applications for loans; that the membership fee he was authorized to collect was his compensation for doing the business. An exhibit, marked “A,” was attached to and made a part of the answer of the defendant, and alleged in the answer to be a copy of the instrument in writing by which Price was appointed agent, and empowered to act for the defendant. That certifies that Price “has been appointed special traveling agent of this association at _____, and is authorized to solicit and receive applications for stock and to collect the admission fee of one dollar per share thereon, and to submit to this association applications for loans for their consideration to the home office at Des Moines, Iowa.” No powers excepting those we have set out were stated in the exhibit. The plaintiff claims that Price was a general agent of the defendant, and to sustain the claim offered the testimony of several witnesses, who testified that they saw the commission or certificate of authority issued by the defendant to Price, and that in lieu of the words “special traveling,” in Exhibit A of the answer, was the word “general,” making the appointment of Price that of a “general agent,” instead of a “special traveling agent.” The defendant objected to this testimony on the ground that the signature to the instrument, a copy of which it is alleged is attached to the answer, is not denied, and that evidence to contradict the terms of the written instrument was incompetent and immaterial. The objection thus made was overruled. No issue is formed in regard to the genuineness of any signature attached to the exhibits of the answer. Therefore section 2730 of the Code does not apply. The claim made by the plaintiff on this branch of the case is, in effect, that Exhibit A of the answer is not a copy of the commission or authority under which Price acted, and it was therefore competent for the plaintiff to show, notwithstanding that exhibit, that Price was in fact empowered to act as a general agent of the defendant. The cases of Hagan v. Insurance Co., 81 Iowa, 321, 46 N. W. 1114, and Shaw v. Jacobs (Iowa) 55 N. W. 333, are not in conflict with the conclusion we announce. It is also claimed by the appellant that...