Sellem v. Iowa City Bank

101 Iowa 566

• Court: Supreme Court of Iowa
• Decided: April 9, 1897
• Status: Published

Opinion

Granger, J.

I. There is some dispute as to facts. It will be remembered that the note in suit is made with the Iowa City National Bank as payee, and hence, on the face of the note, that bank was the original holder. There is no mistake but that the note was given by Clark & Son in settlement of an overdrawn account at the Iowa City Bank, and that the Iowa City National Bank furnished no part of the consideration for the note. As it is a law action, we are to assume facts, having support in the evidence, essential to sustain the judgment. It appears that the note in suit was made on a blank printed for and previously used by the Iowa City Bank, which blanks were, after the organization of the Iowa City National Bank, used, by it, making the change of name by a rubber stamp, and the change was thus made in the note in suit. It appears that, when the .note was taken, it was indorsed by Coldren, as cashier, to the national bank, entered among its bills receivable, and the Iowa City Bank given credit, therefor. It appears from the books that the credit given to the Iowa City Bank on the books of the Iowa City National Bank was one thousand nine hundred and. ninety-four dollars and seventy-five cents, instead of the two thousand dollars for which the note was given. The overdrafts of Clark & Son were something over two thousand two hundred dollars, and some checks' were deposited, amounting to some two hundred and fifty-three dollars and ninety-one cents; and as the note was to mature in ninety days, without interest, the adjustments show an item of five dollars • and twenty-five cents received by the national bank, being the difference between the credit to the Iowa City Bank and the two thousand dollars; and this we understand to be a part of the interest for the ninety days the note was to run. The transaction, in respect to the interest or a division of it, seems to be obscure. It is not made clear by the record. Much importance is attached by appellant to the fact that the note was entered in the daily business of the national bank, taking its regular number in the bills receivable. There seem to have been several purchases of notes by the national bank from the other bank, in which the particular notes are described or. set out, and this note appears in none of them, and in one or more instances the selection was made by a committee of the national bank. These facts are also regarded by appellants as important. . A difficulty with appellant’s position is that this note was actually taken by the national bank from the Iowa City Bank; that it was a note taken in settlement of the business of the Iowa City Bank; that it was indorsed to the national bank, and a credit given.the Iowa City Bank for it, and the indebtedness of Clark & Son to the Iowa City Bank satisfied on the books of that bank. To these are to be added the facts that there was a verbal agreement for such a transfer, and that the transfer was made in pursuance of such agreement. These facts appear conclusively or have such support in the evidence that we must assume them. It is true, there is evidence to the contrary as to some of the facts, but nothing to take them out of the rule as to presumptions where the evidence is conflicting. It is thought that the Iowa City Bank ceased to do business on the first of December, 1882, but there is strong evidence that it did continue to do business for a long time after that. It was not the regular business of banking, but the business of closing up its affairs. Its books were kept, collections made, debts paid, and such business done as properly belonged to a liquidation of its affairs under its agreement with the national bank. In fact, it is to be said that this particular transaction took place with the knowledge and assent of the owners of the Iowa City Bank, in the sense that the district court could have so found from the evidence. The facts make it unnecessary to consider questions such as the authority of Coldren to make the indorsement after the bank ceased to do business. The case is peculiar in the. respect that, while Clark associates the Iowa City Bank with him to deny certain facts, Coldren associates it with him to admit many of the facts denied in the other answer.

II. The claim is made that there was no demand and notice, so as to charge defendants as guarantors. The only way the question comes into the case is by averments in the answers of a failure to make the demand and give notice. This case was tried before the act of the Twenty-fifth General Assembly was passed, and, as no averments were made in the petition as to such facts, they are waived, and need not be proven. Knapp & Spaulding Co. v. Barnard, 78 Iowa, 347 (43 N. W. Rep. 197); Dunn v. Wolf, 81 Iowa, 688 (47 N. W. Rep. 887). The averments in the answers do not change the rule as to the plaintiff. The objection should have been taken by demurrer to the petition, in a case where such averments were necessary to a cause of action. The plaintiff’s proof corresponded to his averments, and, under the rule then in vogue, it was sufficient. Dunn v. Wolf, sufra. The judgment will stand affirmed.