Tesene v. Iowa State Bank
| Decision Date | 20 September 1919 |
| Docket Number | No. 32780.,32780. |
| Citation | 173 N.W. 918,186 Iowa 1385 |
| Parties | TESENE v. IOWA STATE BANK ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. F. Edwards, Judge.
Action in equity to establish a trust and to recover the amount of a deposit in the defendant bank. The petition was dismissed, and the plaintiff appeals. Reversed and remanded.Ira W. Jones, of Clear Lake, and Blythe, Markley, Rule & Smith, of Mason City, for appellant.
Senneff, Bliss, Witwer & Senneff, of Mason City, for appellees.
The petition shows the following alleged state of facts: Plaintiff is the minor daughter of John H. Tesene, who died in Cerro Gordo county, June 11, 1902. His life was insured for the sum of $5,000, payable as follows: $1,000 to his wife, Wilhelmina, $2,000 to his son, Roy, and $2,000 to his infant daughter, Ima, the plaintiff in this action. At and prior to the decease of Tesene the defendant Iowa State Bank was a corporation doing a banking business at Mason City, of which bank I. W. Keerl was the cashier and active manager. Soon after the death of Tesene, Keerl, acting for and in the interest of the bank, and in order to secure the deposit of the insurance money in that bank, accompanied the adjuster of such insurance claim to the home of the widow, and informed her that the money so received for her children would be a trust fund, to be kept distinct from her own moneys, and that it would be necessary for her to be appointed guardian for the children and give bond as such; and, if she would deposit the trust funds in the defendant bank, he would procure the bond for her, and see that the matter of her appointment was properly attended to and arranged.
Thereafter, and in pursuance of this understanding, Keerl caused to be prepared a petition for the appointment of the widow as guardian of her said children, and filed it in the office of the clerk of the district court, and stated and represented to her and to the agent of the insurance company that her appointment as guardian had been made, and thereupon, on June 17, 1902, said agent turned over to the widow a draft for the amount of said insurance, which sum or draft she in turn delivered to Keerl for deposit in the defendant bank. On this sum $1,000 was by the bank credited as a deposit by Wilhelmina Tesene in her own right, and $4,000 to her credit in her capacity as guardian.
It is further alleged that as a matter of fact neither the bank nor Keerl had furnished a guardian's bond, and that the appointment of Wilhelmina Tesene as guardian of her children was never perfected or made, and that said deposit was received by the bank with knowledge and notice of such fact, and, having such knowledge and notice, kept and retained said trust funds until the following year, when, acting by Keerl, it permitted said funds to be drawn out of the bank in checks prepared by Keerl and signed by Wilhelmina Tesene, without authority of law, and with full knowledge on part of the bank that the funds were held in trust for said children.
The son, Roy Tesene, appears to have arrived at his majority, and is not in his own right a party to this action; but the plaintiff alone, who is still a minor, represented by her said brother as next friend and guardian, asks judgment against the bank and its trustees for the sum of $2,000 with accumulated interest.
The defendants admit the corporate capacity of the Iowa State Bank, that it was organized for the transaction of a general banking business, and that Keerl was its cashier, but aver that he was clothed with only power and authority such as is usually exercised by cashiers of banks under the laws of the state. They admit that the money mentioned in the petition was deposited in the bank, and that it was afterward withdrawn upon checks, but deny that such money was received as a trust fund; deny all knowledge and notice of its alleged trust character; deny that the bank assumed or was under any abligation to guard or protect said fund from misappropriation by the plaintiff's mother; and deny that the bank received any part of the money withdrawn from said deposit or any benefit therefrom. The answer further alleges that, if it be true that Keerl received or misappropriated any of said fund, he did not do so in his capacity as cashier or agent of the bank, and avers that, if he is chargeable with any wrong with respect to said transaction, the wrong so done was while acting in his personal capacity, and not as an officer or agent of the bank, and because of such fact it is alleged that his notice or knowledge cannot be imputed to the bank.
On trial to the court the evidence offered tended to show without controversy that at the time of the transaction in question Keerl was the cashier and the active managing officer of the bank in its daily routine of business; that he knew of the death of John H. Tesene, and that his widow and children were the beneficiaries of life insurance, and that of this sum $4,000 was payable to plaintiff and her brother, the infant children of the deceased; that he solicited the deposit of this money for the bank, and as an inducement or aid thereto he prepared the petition for the appointment of the widow as guardian and promised to procure the necessary bond; that as a matter of fact he did not furnish the bond, and the appointment was never made, but it is evident that both Wilhelmina Tesene and the insurance company relied upon his assurance that the matter had been properly attended to, and in such reliance the money was paid over and at once deposited in the bank in the form of a draft made payable to “Wilhelmina Tesene,” and “Wilhelmina Tesene, guardian of the estates of Roy Tesene and Ima Tesene,” and indorsed by her in identical form; that in recognition of the separate interest of the widow in her own right to the sum of $1,000, and of the right of her children in the remainder of $4,000, said sums were placed in separate deposits. One of these accounts was entered upon the books of the bank in the name “Wilhelmina Tesene,” and the other in the name “Mrs. J. H. Tesene.”
At the same time Keerl delivered to the widow a passbook representing the deposit of $4,000, made out in the name of “Wilhelmina Tesene, guardian of Roy Tesene and Ima Tesene.” It further appears that said sum of $4,000 was withdrawn in the following manner: Wilhelmina Tesene, desiring to remove from the farm where she lived to Mason City, consulted with Keerl on the subject, and she says he advised her that she could use the money or some of it in purchasing a home, or, to use her language, “that she could take the money and invest it in a house in town as guardian over her children.” For this purpose she gave a check prepared by Keerl payable to herself for the sum of $2,000, and signed it “Wilhelmina Tesene,” guardian. With reference to the remaining sum of $2,000 she testifies, and it is not disputed, that Keerl told her he had an application for a loan on a dwelling, and asked that she let the bank make the loan, and that she sign the check “so they could use that money to put out at 7 per cent. interest”; and for this purpose she made the check. It was drawn by Keerl, made payable to himself, and signed by her. For this check Mrs. Tesene received no money, property, or thing in value except, as she says, Keerl delivered to her a mortgage supposed to represent the alleged loan, which instrument she placed in one of the bank's safety deposit boxes, of which Keerl had a duplicate key, and that said mortgage afterward disappeared from the box. She never received anything on this mortgage, and is unable to give any description by which it may be identified.
It further appears that, at some time after the $2,000 was used in the purchase of a house for Mrs. Tesene, she became embarrassed financially, and on the advice of Keerl she made to him a mortgage on said home property to secure an alleged debt for $2,000, but in fact wholly without consideration, as a protection to her “so no one could get anything against it.” This mortgage she supposed was still held in the bank until after Keerl left the bank, when she learned, through its president, that the instrument had been sold to an eastern purchaser who was demanding payment thereon. She then went to Keerl who said he would go to the bank and see about it or fix it up, but nothing was done to relieve her. The mortgage was foreclosed and the property was sold and lost to her. She has never paid the debt to her children, and is insolvent and unable to satisfy their claims.
Upon the subject of the authority of Keerl to represent the bank in its business, it is conceded by defendants that he had and exercised the usual and customary authority of bank cashiers in this state. It also appears by the testimony of witnesses, among whom were stockholders, officers, and employés in the bank, that he was the real active head and manager of the bank's business. One director testifies: “He had personal management of the business.” Another says: “As nearly as I could learn, he had been practically the managing officer.” The vice president says: Another director testifies: “Keerl had the active management of the bank; think he practically had the sole management.” The bookkeeper says Keerl was the general manager of the bank, and “dictated the policy of the bank practically so far as the getting of deposits and the loaning of money is concerned.”
Counsel for appellee argue that as cashier Keerl was without express or implied...
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