Smith v. Crawford Cnty. State Bank

• Decision Date: 17 October 1896
• Citation: 68 N.W. 690,99 Iowa 282
• Parties: SMITH v. CRAWFORD COUNTY STATE BANK.
• Court: Iowa Supreme Court

99 Iowa 282

68 N.W. 690

SMITH

v.CRAWFORD COUNTY STATE BANK.

Supreme Court of Iowa.

Oct. 17, 1896.

Supplemental opinion.

GIVEN, J.

An opinion was filed in this case December 15, 1894, affirming the judgment of the district court. See 61 N. W. 378. A rehearing was granted, that we might again consider the case in the light of certain contentions made by the appellant that were not specifically emphasized on the former submission, and not directly noticed in the opinion. Appellee insists that these contentions were not made on the former submission, and that, therefore, appellant is not entitled to now make them. True, they were not made as specifically as now, but sufficiently so, we think, to entitle them to consideration. On the former submission appellant contended that the following facts were established by the evidence, and rested his right to recover thereon: “(1) That Carvell agreed to ship and sell the cattle in plaintiff's name; (2) that Carvell agreed to apply the proceeds in payment of plaintiff's mortgage; (3) that the defendant bank received the proceeds charged with notice of the trust character of the funds.” We found that appellant had failed to establish an agreement that the cattle were to be sold in his name, and with this finding we are still content. Appellant now contends that there was an agreement between him and Carvell that the proceeds arising from the sale of the cattle should be applied in payment of his mortgage; that this agreement created an agency between the parties, and rendered the proceeds a trust fund; and that the bank received the same charged with notice of their trust character. It is insisted that, if each of these propositions should be answered in the affirmative, the judgment of the district court must be reversed. A careful review of the evidence leads us to the conclusion that there was no material difference in the agreement under which these cattle were sold from that which had previously existed between these parties for several years as to the sale of other lots of cattle. We have no doubt but that it was expected by appellant and intended by Carvell that the greater part of the proceeds should be applied upon Carvell's indebtedness to appellant; that Carvell should ship and sell the cattle through the commission house in Chicago, cause the proceeds to be returned to the defendant bank, and appellant to be notified, so that he might send his notes to the defendant bank, to be credited with whatever Carvell should cause to be so applied. The proceeds were sent to the defendant bank, credited to Carvell, and $2,000, for which Carvell gave his check, was credited upon the notes, and that amount transmitted to and received by the plaintiff....