Vogelgesang v. Farmers' State Bank

• Decision Date: 21 February 1929
• Docket Number: No. 6462.,6462.
• Parties: VOGELGESANG v. FARMERS' STATE BANK.
• Court: South Dakota Supreme Court

54 S.D. 575

223 N.W. 831

VOGELGESANG

v.FARMERS' STATE BANK.

No. 6462.

Supreme Court of South Dakota.

Feb. 21, 1929.

Appeal from Circuit Court, Charles Mix County; A. B. Beck, Judge.

Suit by Conrad Vogelgesang against the Farmers' State Bank, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.Willy & Dwyer, of Platte, for appellant.

J. E. Tipton, of Lake Andes, and Fred A. Lynch, of Platte, for respondent.

POLLEY, J.

The defendant in this action is a banking corporation carrying on a general banking business at Platte. Plaintiff had deposited money in said bank, and on the 18th day of November, 1925, had $1,525 in an open account in said bank. This money was the proceeds of certain hogs that had been sold by plaintiff. On the 27th day of said month plaintiff issued a check on said bank for $1,525. The check was presented to defendant for payment, but payment thereon was refused. The ground for such refusal was that defendant claimed that the hogs sold by plaintiff were the property of A. L. Vogelgesang, who was plaintiff's father; that A. L. Vogelgesang was heavily indebted to defendant; and that it had a right to apply said money on A. L. Vogelgesang's debt.

After the refusal to pay said check, plaintiff made a demand for the money, which demand was refused, and the plaintiff brought this suit for the recovery of the same. The case was tried to a jury. At the close of the evidence the court, upon plaintiff's motion, directed a verdict for the plaintiff.

Judgment was entered for plaintiff upon said verdict, and defendant appeals.

The facts upon which defendant bases its claim are as follows:

A. L. Vogelgesang was then, and for several years prior thereto had been, operating a large farm a short distance from Platte. Plaintiff, with the exception of certain occasions when he had worked out among the neighbors, had always lived at home and had assisted his father with the work on said farm. The hogs that had been sold by plaintiff had been raised on the farm with other hogs, admittedly the property of A. L. Vogelgesang. But to rebut any inference that might be deduced from the above circumstances, plaintiff showed that he was 23 years old; that he had worked out some for wages; that beginning some time in 1923 he had purchased one or more brood sows occasionally-these sows had been bred and increased in number until in the fall of 1925 he had 57 head of hogs. He had kept these hogs marked so that they could be distinguished from his father's hogs, and for a part of the time at least had kept them separate from his father's hogs. In the spring of 1925, plaintiff had decided to leave home and go out and work for himself, but as an inducement to keep him at home, his father told him that if he would stay at home and continue to help with the farmwork, he might have sufficient feed to feed and fatten his said hogs. This arrangement was carried out, and it was the hogs that were so fed and fattened that had been sold by plaintiff for which he...