Rose v. Shaw ( 1918 )

LECHE, J.

Plaintiff prays for judgment against defendant in the sum of $3,196.30, with 8 per cent, interest from February 17, 1915. The transaction out of which plain.tiff charges his claim to have originated is by him alleged as follows:

“2. That under an agreement made by the said defendant, petitioner placed in the hands of defendant, two thousand five hundred dollars in money on the 19th day of February, 1906, and another two thousand five hundred dollars on the 5th day of March, 1906, to be invested by the defendant as he might deem proper; the said defendant to pay to your petitioner eight' per cent, per annum interest on the said amount, so long as same was not returned to your petitioner.”

Plaintiff then alleges various credits, charges for interest, and an additional charge for proceeds of a farm sold for his account by defendant, and, after adding and deducting these various items, concludes by praying for judgment in an amount which he represents as the balance due him on February 17, 1915.

The answer admits the two deposits of $2,500 each, which were to be invested by defendant for account of plaintiff, but denies any agreement on the part of defendant to pay any interest on said deposits except such interest as might be earned by investments on loans made to other persons. Defendant further alleges a full and complete accounting to plaintiff, denies owing the latter anything, and claims in reconvention the sum of $375.77 for drug bills and money paid to satisfy a judgment due by plaintiff to the Elgin Banking Company.

The district court rendered judgment against plaintiff and in favor of defendant, allowing the latter’s reconventional demand, and plaintiff appeals.

[1] The issues in this case are purely of fact, and in order to entitle him to recover it must appear that plaintiff has proved his claim with reasonable certainty and by a preponderance of evidence. The agreement alleged by him is denied by defendant, and is not established by a preponderance of evidence. The conflicting testimony of the parties not only leaves the mind in an absolute condition of uncertainty, but if the improbable character of the alleged agreement be considered, the conclusion is almost irresistible that plaintiff’s version of it is erroneous. That an intelligent business man, as we judge defendant to be, should agree to act as agent of another person, for the purpose of investing that person’s funds and at the same time bind himself to pay him (the investor) 8 per cent, interest on said funds, even though they were not yet loaned or invested, is not only unreasonable, but might properly be considered, owing to the fact that the agent would be giving something for nothing, as ground to justify suspicion as to the agent’s good faith. Such an agreement would require clear and convincing proof to establish its existence. We are therefore of the opinion that the parties agreed as contended by defendant, and not as alleged by plaintiff. This finding disposes of the items for unearned interest, which plaintiff claims from the defendant.

A much contested charge in plaintiff’s account is one for $1,800, alleged to be the proceeds of a farm bought by defendant in his own name for $1,705, and subsequently sold by him to a Mr. Gonsoulin. The evidence shows that defendant bought the property as alleged and sold it for $1,800, of which amount Mr. Gonsoulin, the purchaser, paid $800 cash and gave his note for $1,000 in representation of the balance of the purchase price. The title to the property remained in the name of defendant for about two years, during which time plaintiff was continuously in possession, and the sale to Gonsoulin, though signed by defendant, was negotiated by plaintiff himself, and it appears that plaintiff received the cash payment of $800 by check dated March 24, 1908. The evidence further shows that • plaintiff used the $1,000 note of Gonsoulin, as collateral, to borrow funds from the State National Bank, and that he finally indorsed receipt of payment in full on said note when it was taken up by Gonsoulin. It would serve no useful purpose to discuss the several other items of charges in plaintiff’s account. Suffice it to say that the correctness of the account rendered by defendant is confirmed by canceled checks and by letters, and appears to be well established. 'Such were the conclusions of the district judge, and they seem to us to be well sustained by the evidence in the record.

Judgment affirmed.