Hanby v. First Savings Bank of Spring Hill

De Grape, J.

]. Banks and . banking: deposits: title to and disposition . of deposits. The record discloses that one Leo Foust purchased certain cattle in the fall of 1919 from the plaintiff Hanby, and executed and delivered in consideration therefor a note and a chattel mortgage on the cattle. On February 2, 1920, Foust sold the cattle to one Harry Bookey for the sum of $3,583.70, and received a check from the vendee in payment thereof, *151 which check was deposited with the defendant bank shortly thereafter. On February 9, 1920, Foust delivered his check to the plaintiff for the debt owing the plaintiff, which was deposited February IQ, 1920, with the Peoples Trust & Savings Bank of Indianola, which bank gave plaintiff credit thereon. In due course of business the check was remitted to the bank’s correspondent in Des Moines, and received by the defendant bank February 14, 1920. Payment was refused for want of funds, and the check was protested. Leo Foust Avas indebted to tire defendant bank on two notes aggregating about $1,100, which, together with an overdraft, was sufficient to make his indebtedness to the bank amount to $2,049, had the Bookey check been listed separately and treated as' a special ’deposit in favor of the plaintiff.

The material testimony concerning the character of the de- ’ posit is in dispute. Foust testifies that, when he deposited the cattle check, he told the cashier of the defendant bank that he wanted to leave the check and have it listed separately from his account at the bank, as a certain amount of it belonged to Hanby, but the exact amount he did not know. He also testifies that the cashier asked him whether or not he had been selling some cattle, to-which he replied, “Yes,” and that the cashier then inquired, “Are they the cattle that Mr. Hanby had a mortgage on?” to which Foust again replied, “Yes.” The cashier testified that he did not remember such a conversation, and denied that there was such a conversation. Plaintiff testified that, on February 11, 1920,' he met the cashier at a land sale, and told him of the receipt of the check the day before from Foust, and asked the cashier if the money was in the bank, to which the cashier replied that Foust had left the money, and that he (cashier) would take care of it. The cashier states that he does not remember this conversation. Prior to the time that the bank refused payment of the Hanby check, the indebtedness owing by Foust to the bank had been charged off by the bank from Foust’s account, and other checks drawn by Foust had been paid by the bank from this account.

The verdict of the jury must have been based on the testimony of Foust, and it is evident that the jury believed his testimony. If, at' the time the deposit was made, the cashier of the *152 defendant bank was directed to list the deposit separately, and for the reason that the money belonged to the plaintiff, and was deposited for and on behalf of the plaintiff, a special deposit resulted, and a trust relationship was brought into bsing. Plaintiff had the burden to prove notice to the bank of the interest claimed by him in the funds deposited. The sufficiency of the evidence is for the jury, and, as indicated, there' is a conflict in the evidence on this issue.

A bank to whom a depositor is owing a matured indebtedness may appropriate the general deposit of its debtor to the discharge of the obligation. With this rule there is no quarrel. It is no less certain that a deposit made for a special purpose or under a special agreement or with knowledge or notice on the part of the bank of its trust character cannot lawfully be so appropriated. Our own views on this proposition have been frequently expressed before. Thomas v. Exchange Bank, 99 Iowa 202; Smith v. Des Moines Nat. Bank, 107 Iowa 620 ; Smith v. Sanborn St. Bank, 147 Iowa 640 ; Dolph v. Cross, 153 Iowa 289 ; Porter Auto Co. v. First Nat. Bank, 185 Iowa 844 .

When a person has money which in equity and good conscience belongs to another, and it can be traced into the hands of such person, who has neither paid a valuable consideration therefor nor changed his relation to the person, .from whom the fund was received, so as to give rights to any equitable defense against the claims of the true owner of such fund, the latter should recover, when it is shown that he who claims' it against the true owner has notice of the trust character of the fund so received or appropriated.

2. Evidence: materiality : proof of custom. In the instant case, complaint is made of the ruling of the trial court in excluding testimony sought to be elicited from one of the officials of the defendant bank as to the custom of bank officials in handling special deposits. There is no error here. It is quite apparent that this testimony was offered as corroboration of the cashier of the bank that no oral direction had been received by him from the depositor at the time the fund was deposited. Proof of custom would be wholly immaterial to contradict the positive testimony of witness Foust that he directed the cashier to list the deposit separately, nor would it tend to corrobo *153 rate the testimony of the cashier that he did not remember such conversation, or his denial of such conversation.

In conclusion it may be said that the appellant herein does not set out in his brief any assignment of error, and his fifteen points or propositions are mere statements of legal principle. Error relied upon must be pointed out. This court is entitled to know without searching the record whether there is something upon which error may .be predicated. Holt v. Doty, 193 Iowa 582 . The primary proposition as argued by appellant involves the sufficiency of the evidence to sustain the verdict. To this we have made answer. The exceptions to the instructions recite no specific ground on which the objections are based, and the brief points noted by appellant are quite silent in this particular. Under the rules of this court, appellant is not entitled to have any errors considered; but we are satisfied, upon a review of the record, that it does not contain reversible error.

Wherefore the judgment entered is — Affirmed.

ArtiiüR, C. J., Stevens and Vermilion, JJ., concur.