Garrett Savings Loan & Trust Co. v. Sanders ( 1930 )

DISSENTING OPINION. I do not agree with the majority opinion that there is no evidence to support the decision of the trial court, and I therefore dissent. Let us keep in mind that we are not to weigh the evidence, but only to determine whether there is any evidence, or inference therefrom, to support the court's decision.

Monte L. Green was the president of appellant trust company, and had been such president for some time theretofore. Appellee had been a depositor in appellant trust company, and as such had transacted his business with such bank through Green, its president. Green was also secretary-treasurer of the Garrett Home Building Company. When appellee did business with Green, it is clear that he understood that he was transacting business with the institutions which he was directing, as president of the one, and secretary-treasurer of the other. Appellee testified that he always considered the Garrett Home Building Company as part of the trust company, because Green had full sway with all their affairs. His testimony is fully corroborated by the fact that the building company had no place of business other than appellant's place of business, in the directors' room in which Green, as its secretary-treasurer, kept his files. After evasive answers to a number of questions as to where the board of directors of the building company met, he answered: "Generally upon my invitation, in the directors' room, not in the bank," and then testified that they met only once a year. It should need no argument to convince the court that Green was in full sway in the management of both companies, for a board of directors that meets but once a year can have little to do with the management of its company's business.

When appellees, in July, 1926, talked with Green in the bank, with the bank clerks present, about deeding the lot to him, on condition that they would release him from the note and mortgage, and pay the balance due on the pavement and water taps, the court was fully justified in inferring that appellees understood that "they" meant appellant trust company and the Garrett Home Building Company, and that appellees were dealing with both companies. Thereafter, without further conversation with appellees, appellant's president, Green, prepared a deed with Garrett Home Building Company, of which he was secretary-treasurer, as grantee, and mailed it to appellees in a Garrett Savings Loan and Trust Company envelope. Appellee, Jesse Sanders, testified that he did not know whether Green was secretary, or whether just president of the bank, but that he had been conducting business in real estate in that way. In answer to the question, "You had no dealings with the loan and trust company whatever in connection with this transaction?" he answered: "What would you consider Mr. Green? He was president of the bank." And then, in answer to the question, "He was secretary of the building association, of which you had knowledge at that time?" he answered: "The real estate business of the trust company was done in that way."

In Heim v. First Nat. Bank of Humboldt (1906),76 Neb. 831, 107 N.W. 1019, a party went to a banking house to make a time deposit, and being informed that four per cent interest was paid on time deposits, he deposited $1,600, and received a time check for $1,600, payable at the bank, signed by the president individually. There was nothing to show that the bank assumed any obligation for its repayment. But it was held that the depositor could recover from the bank in an action for money had and received.

In Burnell v. San Francisco Savings Union (1902), 136 Cal. 499,69 P. 144, a debt to a bank was secured by a deed of trust which named an officer thereof as trustee. The latter generally attended to its loans, and, in the course of such business, received a check from a prospective purchaser of the property for more than the amount of the debt and signed a conveyance of the property to the parties. The transaction was had, the check was delivered to him across the counter and at the desk or window where such transactions were ordinarily had, and he was instructed to deduct the amount of the debt and to hold the balance on deposit for the debtor. He handed the check to a teller, and the money therefor was received by the bank. He was authorized to sign and indorse checks and to sign certificates of deposit in the absence of the cashier, and, in this case, he issued a certificate to the debtor's husband for the balance due her and afterwards paid the same to the husband's order. It was held that he was authorized to receive the deposit, and the bank was accordingly liable for the money received for the debtor, and which it had never paid to her.

These cases illustrate the principle that where a transaction is had in the place of business of a bank or trust company, and across the counter and at the desk or window where such transactions are ordinarily had, and the party so dealing understood that he was dealing with such company, though the officer in charge transacted the business in his own name, the bank will be liable.

After the execution and acknowledgment of the deed, it was returned to Green, in July, 1926, and was kept in the trust company's place of business until November 8, 1926, four months, without any suggestion or indication that it was not accepted, and then, without any explanation for so doing, the deed was returned to appellees. It is true that Green testified at the trial that it was returned because appellees failed to pay an assessment in favor of one Van Fleet for putting in a water tap, but appellee testified that there was no agreement that he was to pay Van Fleet anything, that he fully explained to Green as to every claim that was to be assumed, including the Van Fleet claim, and that this claim was never mentioned to him by Green or anyone after the deed was executed and delivered to him, and that Green never at any time said that the acceptance of the deed was conditioned upon his paying the Van Fleet claim.

It is well settled that when a deed, duly executed and acknowledged, is delivered, the title passes to the grantee, and that it is not divested by a return of the deed to the grantor.Connelly v. Doe (1846), 8 Blackf. (Ind.) 320; Dearmond v.Dearmond (1858), 10 Ind. 191; Somers v. Pumphrey (1865),24 Ind. 231; Nye v. Lowry (1882), 82 Ind. 316; Bunz v.Cornelius (1886), 19 Neb. 107, 26 N.W. 621.

I surmise that, had appellees filed a cross-complaint, and, on proper motion, the building company had been made a party defendant to the action, and appellees had examined the officers of both companies under oath, and had made an examination of their records and files pertaining to their dealings with each other, their true relations would have been more clearly disclosed; but, without this step, I am of the opinion that there is ample evidence to sustain the decision of the court, that a right result was reached, and that the judgment of the court should not be reversed.