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(109 Ind. 71)

CUMMINGS, Ex'r, etc., v. PEED and others.

(Supreme Court of Indiana. January 4, 1887.) 1. EXECUTORS AND ADMINISTRATORS-CLAIMS-INITIALS OF NAMES OF CLAIMANTS.

Where there was no demurrer to the complaint or claim filed against a decedent's estate in the trial court, and its sufficiency is not questioned by the assignment of error in the supreme court, there can be no reversal merely because the claim as filed contained only the initial letters of the given names of the claimants,

instead of the names in full. 2. SAME-WARRANTY-CONDITION-FAILURE TO PERFORM.

Where the owner of a stallion insures the getting of a mare with foal by such stallion upon condition that the owner of the mareshould not part with such ownership within 11 months, he to forfeit the insurance, and pay an agreed price for the service, if he should do so, and, the owner of the mare having died, his executor sells the mare within the 11 months, the estate is liable to pay for such service, although the mare is not with foal.

Appeal from circuit court, Henry county.
Claim against decedent's estate.
L. P. Mitchell, for appellant. Mellett & Bundy, for appellees.

ZOLLARS, J. Appellees filed a claim against the estate of Isaac S. Moddy, deceased. Appellant, as the representative of that estate, having failed to allow the claim, it was docketed for trial by the court. The court made à special finding of the facts, and, upon conclusions of law based upon those facts, rendered judgment for appellees for the amount of the claim.

One of the grounds urged for a reversal of the judgment is that the claim, as filed, did not contain the full names of appellees as claimants, initial letters being used instead of their given names. There was no demurrer below, neither was the attention of the court in any way called to the defect which counsel now urge. The assignment of errors here is not such as to call in question the sufficiency of the complaint. The record before us is not in shape to warrant a reversal of the judgment because initial letters were used instead of the full given names of the claimants. Hopper v. Lucas, 86 Ind. 43, 50, and cases there cited.

The claim was for the services of appellees' stallion horse for the season, at the agreed sum of $20 each for two mares. Appellees “insured” to the mares to get with foal; but it was also agreed between them and Moddy, the decedent, that, if he parted with the ownership of the mares before the expiration of 11 months from the date of the service of the horse, he should forfeit the insurance, and pay the agreed sum of $40. Within the 11 months Moddy died, and the appellant, as executor, sold the mares. They were not with foal. It is contended by appellant that appellees should be held to their insurance independent of the condition, and that, as the mares were not with foal, they should not recover. We think otherwise. The insurance or warranty on the part of appellees was conditional, the condition being that Moddy should not part with the ownership of the mares before the expiration of 11 months from the date of the service of the horse. It is not clearly apparent why this condition was annexed, nor how it could be of much importance, but it was a condition which the parties had a right to couple with the "insurance,” and one, therefore, by which they and their representative were and are bound. The purpose seems to have been to keep the ownership with Moddy, and the mares in his possession and under his control, and to make the insurance dependent upon such continual ownership, possession, and control. That the mares were sold before the expiration of the 11 months, in consequence of Moddy's death, does not turn the conditional insurance into an absolute insurance. The stipulated condition has not been complied with, and that releases appellees from their insurance. Moddy might have stipulated that the condition be dispensed with in the event of his death, but he did not do so. See Campbell v. Hamilton Mutual Ins. Co., 51 Me. 69.

Judgment affirmed, with costs.

(109 Ind. 345)

ROBY 0. PIPHER and another. 1

(Supreme Court of Indiana. January 6, 1887.) APPEAL-WEIGHT OF EVIDENCE-REVERSAL.

While the supreme court will not reverse a judgment on the mere weight of conflicting evidence, yet where, as in this case, the evidence wholly fails to sustain the finding upon a niaterial issue, the judgnient will be reversed, and the cause reinanded for a new trial. Appeal from circuit court, Harrison county.

Action on contract for furnishing saw-logs. Answers of general denial and payment.

Geo. W. Self and W. N. & R. J. Tracewell, for appellant. Wayne Cook, for appellees.

HOWK, J. In this case the appellant, Roby, the plaintiff below, substantially alleged in his complaint, that he had sold the appellees 600 saw-logs, at the agreed price of $1.50 per log, amounting, in the aggregate, to the sum of $900; that of this sum appellees had paid him $547.50, leaving a balance of $352.50 still due him from appellees, and wholly unpaid. Wherefore, etc. Appellees answered by a general denial of the complaint, and a plea of payment, to which appellant replied by a general denial. The issues joined were tried by the court, and a finding was made for appellees, the defendants below; and, over appellant's motion for a new trial, the court adjudged that he take nothing by his suit, and that appellees recover of him their costs herein.

The only error assigned here by appellant is the overruling of his motion for a new trial. The causes assigned for such new trial were that the finding of the court was not sustained by sufficient evidence, and was contrary to law. Appellant had the burden of the issue joined on his complaint, while the appellees had the burden of the issue joined on their plea of payment. It was shown by appellant, on the trial, that appellees bought of him the logs mentioned in his complaint under the terms of a written contract executed by them. We set out so wuch of this contract as applies to this case. as follows:

“LACONIA, IND., November 15, 1883. “Pipher & Hamilton this day bought of Mr. Curtis Roby * * * all the poplar, oak, and hickory timber, on what is known as the Home Place,' for $1.50 per log, bad hearts to be measured out; Mr. Roby to cut this timber down. To be paid for when cut down."

By an abundance of uncontradicted evidence, appellant further showed that, long before the commencement of this suit, he had cut down "all the poplar, oak, and hickory timber on * the · Home Place,'" and that such timber made about 600 “logs," within the meaning of appellees' contract. So that, if the issue joined by the answer in denial of the complaint had been the only issue in this case for trial, it is very clear, we think, that appellant would have been entitled to a finding and judgment for the full amount of his claim herein.

We come, now, to the consideration of the issue joined on appellees' plea of payment, as to which issue, as we have already said, the burden was on them to sustain it by the evidence. There was a failure of evidence, we think, to sustain the plea of payment. This evidence consisted of the testimony of the two appellees, and there was not entire harmony in their eviJence. Appellee Hamilton testified that, about three weeks before the trial, 1 Rehearing denied.

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he offered to pay appellant for some of the logs, but he did not remember how many. “Mr. Roby would not take the money,” the witness testified. “He claimed that we owed him for more." If the appellees did not owe Mr. Roby “for more," appellee Hamilton did not so testify. Appellee Pipher testified, “We claim that we have paid Mr. Roby all that we owe him;” ánd, again, “We paid him for all the timber that was suitable for sawing." This evidence wholly fails to show that the appellees had, in compliance with their written contract, paid appellant $1.50 “per log” for all the poplar, oak, and hickory timber cut down by him on the “Home Place.” We are of opinion, therefore, that the trial court clearly erred in overruling appellant's motion for a new trial. This is not a case of conflicting evidence. It is simply a case of the failure of evidence on the part of appellees to sustain their plea of payment. The case is not governed or controlled, therefore, by the long-established rule that this court will not disturb the verdict of a jury, or the finding of a trial court, upon the mere weight or preponderance of the evidence. Where, as in this case, the evidence wholly fails to sustain the verdict or finding, upon a material issue in the cause, it is as much the duty of this court to reverse the judgment below, and remand the cause for a new trial, as it would be for any error of law occuring at the trial, and excepted to. This is settled by our decisions. Roe v. Cronkhite, 55 Ind. 183; Butterfield v. Trittipo, 67 Ind. 338; Kitch v. Schoenell, 80 Ind. 74.

The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings.

(103 N. Y. 472)

SIMS, Ex'r, v. UNITED STATES TRUST Co. OF NEW YORK.

(Court of Appeals of New York. November 23, 1886.) 1. BANKS AND BANKING-DEPOSITORS-UNAUTHORIZED PAYMENT OF MONEY OF.

Where the drawer of a check upon one bank in favor of another delivers the check to a person with verbal instructions to deposit it to the drawer's credit in the bank in favor of which it is drawn, and instead that person deposits it there to his own credit, as trustee for the drawer, and afterwards draws the money, the bank is

liable to the drawer of the check for the money so paid. 2. SAME-CUSTOM-SIGNATURE BOOK.

The fact that a bank makes a practice of requiring the signature of customers to accompany their deposits will not protect it from liability to the real owner for

money received without taking his signature. 3. PRINCIPAL AND AGENT-POWER OF ATTORNEY-AUTHORITY TO DO BUSINESS IN PRIN

CIPAL'S NAME WITH BANK.

A power of attorney authorizing the donee therein named to collect all moneys due or to become due his principal on “rents, accounts, bonds, and mortgages, or otherwise," and to do all business with a particular bank named in the power, in his principal's name, which the principal could do were he present, gives the attorney no authority to draw money of his principal from another bank. Wm. A. W. Stewart, for appellant. J. Alfred Davenport, for respondent.

RUGER, C. J. On the fifteenth of November, 1882, the plaintiff's testator, J. Marion Sims, delivered to one Crowell his check on the People's Bank of the City of New York, payable to the order of the defendant, for $5,000, with verbal directions to deposit the same to his credit with the defendant. Instead of doing as directed, Crowell delivered the check to the defendant; but requested and received from it a certificate of deposit payable to himself, as trustee for Dr. Sims, and shortly thereafter drew the money thereon, and converted it to his own use. The defendant collected the money from the People's Bank upon Dr. Sims' check, and the main question in the case is whether it had authority to make the payment it did to Crowell. It claims to have acted in so doing upon the strength of an alleged custom among banks au- .

See note at end of case.

thorizing such a payment. Upon the trial, however, the proof in relation to such custom was conflicting, and the question as to its existence was submitted to the jury, and found against the defendant's claim.

Upon the transaction, with this feature eliminated, there would seem to be no doubt of the defendant's liability. The check, upon its face, imported the ownership of the moneys represented in it by Dr. Sims, and his desire that its custody should be transferred from the People's Bank to the defendant. This certainly did not warrant the defendant in supposing that Dr. Sims thereby intended to pay $5,000 to Crowell, or place him, for any purpose, in possession of the fund. If he had so intended, the check would have been made payable to Crowell's order, and there would have been no need of the agency of the defendant in the transaction. The use of the defendant's name as payee of the check indicated the drawer's intention to lodge the moneys in its custody, and place them under its control, and nothing further than this was inferable from the language of the check. The check, by its terms, authorized the defendant to withdraw from the People's Bank a certain sum, for a purpose not disclosed, but fairly inferable from the nature of the defendant's business.

The defendant could have refused to receive the deposit, or act as Dr. Sims' agent in transferring the funds from one custodian to another, but, having accepted the office of so doing, it was bound to keep Dr. Sims' moneys until it received his directions to pay them out. The language of the check making the funds payable only upon the order of the defendant imposed upon it the duty of seeing that they were not, through its agency, improperly disbursed after it had received them. They could not safely pay out such funds except under the direction of their lawful owner. This they have never received, unless the proof hereafter referred to shows such authority..

On the trial the defendant offered in evidence a power of attorney from Dr. Sims to Crowell, which, so far as appears, had always remained in the custody of the People's Bank, and never came to the knowledge of the defendant until after the transactions in question. This evidence was objected to by the plaintiff, and excluded by the court, to which ruling the defendant excepted. This exception presents the principal question in the case. The power of attorney read as follows:

“Know all men by these presents, that I, J. Marion Sims, of the city of New York, have made, constituted, appointed, and by these presents do make, constitute, and appoint, Gilbert L. Crowell, of the same place, my true and lawful attorney, for me, and in my name, place, and stead, to collect and receive all sums of money now due, or hereafter to become due, to me, whether from rents, accounts, bonds, and mortgages, or otherwise, and, upon payment thereof, to give good and sufficient receipts or other discharges therefor. Also to transact all my ordinary bank business at the People's Bank, in the city of New York, to draw checks on said bank, and to indorse checks, promissory notes, drafts, and bills of exchange for collection or deposit. This power of attorney to remain in force until said bank is notified of its revocation, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be dono in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of revocation; hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do, or cause to be done, by witness hereof.

“In witness whereof I have hereunto set my hand and seal the fifth day of April, 1870.

J. MARION SIMS. [L. s.] (50-cent internal revenue stamp. ] Sealed and delivered in the presence of

“CHARLES S. BUSHNELL.”

We are of the opinion that the exception was not well taken. At the time of this transaction Crowell made no claim of acting as the general agent of Sims, and the defendant had no reason to suppose that he was acting in such a capacity. It dealt with him solely upon the faith of the apparent authority inferable from his possession of the check, and, if it was mistaken in supposing that that fact gave him authority to dispose of the fund, there is no reason, in equity or justice, why it should not be held to the consequences of its error. Assuming, for the present, that the power of attorney gave Crowell authority in fact to withdraw the deposit from the defendant, yet the defendant did not rely upon or act on this authority. It is by no means certain, if the bank had required Crowell to show his authority to dispose of Dr. Sims' moneys, an examination of the power would have led to a refusal to pay them out on a stale paper, antedating the transaction by upwards of 12 years, and couched, to say the least, in ambiguous language. Further inquiry would undoubtedly have led to a discovery of Crowell's abuse of his employment, and the danger threatening the security of the fund intrusted to him to deposit. The loss of the moneys in question is directly traceable to the defendant's act in paying Crowell upon an unwarranted assumption of his authority to receive them, and their neglect to investigate the extent of his power.

But, however this may be, we are of the opinion that the power did not in fact authorize Crowell to withdraw the deposit. The defendant is not even entitled to invoke the benefit of the rule requiring the language of a written instrument to be construed not strictly against its maker, for it did not pay the money upon a consideration of its provisions, and it stands now upon the authority which the power in fact gave to Crowell. If we regard the authority intended to be conveyed by the first paragraph of the power alone, it would hardly seem that it embraced wit. .n its terms authority to withdraw deposits or charge investments; but, when considered in the light of the rule restricting the meaning of general words by the signification of those associated with them, it seems such authority was still further removed from the intention of the parties. The clause itself imports a general power to collect and receive all moneys due, and to become due, upon "rents, accounts, bonds, and mortgages, or otherwise," and evidently refers to such collections of moneys as would be within the ordinary duties of a collecting agent of a business man.

Under well settled rules, the words, “or otherwise,” are limited in their meaning by the words, “rents, accounts, bonds, and mortgages” preceding them, and refer to debts and liabilities of a similar character, and cannot reasonably be held to extend to the collection of moneys already received and deposited in a solvent institution subject to the immediate disposition of the owner. To say that the removal of a deposit with a solvent trust company, under the claim that the agent was thereby engaged in the business of collecting his principal's credits, would seem to be in violation of the clear meaning and intent of an authority to transact only collecting business. Familiar illustrations of the application of the rule of noscitur a sociis occur in Mangam v. City of Brooklyn, 98 N. Y. 595; McGaffin v. City of Cohoes, 74 N.Y. 389; Corning v. McCullough, 1 N. Y. 47; and fully authorize the construction which we have given to this power.

When, however, this clause is considered in connection with the subsequent provisions of the power, all serious doubt of its meaning would seem to be removed. The last clause specially treats of the powers intended to be conferred upon the agent in dealing with banks in the name of his principal. If such duties had been supposed to be included in the first paragraph, then the last one has no office to perform. If the authority "to collect and receive all sums of money now due, or hereafter to become due,” gave Crowell power to transfer and remove trust deposits, placed by way of investment or otherwise in banking institutions, certainly the special provision authorizing him

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