
    Bank of Milo v. George W. Vertz, Appellant.
    Negotiable instruments: evidence. — finding that note in possession OP MAKER IS UNPAID, SUSTAINED.
    
      Appeal front Warren District Court. — Hon. J. H. Applegate, Judge.
    Thursday, December 12, 1895.
    The plaintiff, a firm doing a private banking business, brought ¡this action iin equity to recover ome hundred and fifty-five doiluns, with interest upon a promissory note alleged to toe lost or destroyed, and to foreclose a chattel mortgage given to secure the same. Plain/tiff alleges that it 'is the owner of said mote and mortgage, 'and that said note is due and unpaid. The defendant answered, admitting the execution of said note and mortgage, hut denying that he Is indebted Ithereom, denying that the same, is lost or destroyed, or that 'the plaintiff is 'the owner 'thereof, 'or has any interest ■therein, and alleging that the same was fully paid to the plaintiff. 'He alleges by way of cross claim that in the year 1890-ihe paid 'to 'the plaintiff one hundred dollars, to be credited on a note for Six 'hundred and twenty-five dollars, which the plaintiff then held against him; that plaintiff failed to credit said amount on said note, «amid falsely and fraudulently stated to defendant that said amount had been credited oin the note in -suit Which had been ■lost, knowing that said note had not been tost, but was fully paid, and delivered to 'the defendant; that by said false statements defendant was pursuaded to. pay to plaintiff one hundred dollars more 'than was due; wherefore he prays judgment against the plaintiff for one hundred dollars, with interest. Plaintiff, in reply, denies that ithe note iim suit has beeu paid, denies 'the allegations of false and fraudulent representations, 'and denies that plaintiff made on overpayment of one hundred dollars, <or of -any other sum. The case was tried to the -court, and judgment and decree entered to favor of -the plaintiff. Defendant appeals.
    
    Affirmed.
    
      W. E. Berry for appellant.
    
      W. F. Bowell for appellee.
   Given, O. 3.

The only questions presented on this appeal are Whether the note in suit has been paid, and whether the defendant •made an overpayment of one hundred dollars to the plaintiff. On 'both questions the evidence is conflicting, and not entirely convincing as to the claims of either party. With this conflict before us, we are to determine in whose favor the evidence preponderates. We will not consume space here to set out or discuss the evidence •in detail, but simply notice those 'Controlling features that, in our ¡opinion, determine with which- party the preponderance of the evidence is. For a -number of years -the defendant, a farmer, had dealings with ‘the plaintiff bank, concerning which 'the bank alone kept aeounts. During -the period under consideration the bank held five different promissory -notes against the plaintiff, concemtog which there were a -number of transactions, as shown by the bo'oks of 'the bank and statements of 'the witnesses. We first inquire whether the note in- suit has been paid. John F. and Nathan Schee, of the plaintiff firm, who 'transacted the business With the defendant, testified positively 'that the note -in suit was ■never paid, and that the same is not in the possession of the -plaintiff. They are unable to say how it got out of -ihe plaintiff’s possession, except to surmise that it was delivered to the defendant by mistake at a (->me when he took up- some other of his- notes. The bank books fully corroborate these witnesses in their statement that this note has not 'been paid. The accunaey of 'these books is questioned, but, while we think 'mistake was not impossible, we are satisfied that the books were skillfully and honestly kept. They were 'so kept that if this note had been paid, though not so entered, the fact musr, have appeared in' a surplus of cash on band. I't is impossible that this payment -could have been made without its being knowu to the agents of the bank, and we do not ■think we are warranted in concluding that they received the payment, and omitted to make proper entry upon their books, for the ■purpose of defrauding the defendant. If the question of payment ■rested upon the testimony of these witnesses and the hooks of the bank, we would n'ot hesitate in finding that 'the note was unpaid, notwithstanding the failure of the plaintiff to produce it. On the other hand, the defendían! produces 'the note sued upon, marked “Dadd,” by himself, in red 'ink, across the face thereof. His statements concerning the payment of the note 'are so- blended with his statements of the overpayment of one hundred dto-Bars (that i>t has required very careful reading to arrive at a correct understanding of what (he says con&rmng .the payment. In hi® evidence these ■statements are found: “I never took this note from Mr. Schee, nor any other place or person, without the payment of it, and I' did mot get it in my possession by mistake. The note for one hun drCd- and fifty-five dollars, marked ‘Exhibit I,’ is 'the note I paid. I put the word ‘Bald’ on that note, and 'drew the lines through the name. I did it lat home.” Again he says: “I had 'the $155.00 note before the 12th of June, 1891. * * * I do not -remember -the date I pal'd it, but it war before the 12th of June, 1891. * * * I do not remember the exact amount I paid when I got the $155.00 note, but I paid wbat was due, and paid it in ea-sh. Johnn'i-e Schee computed the interest, -took the money, and gave me the note. I remember the transaction.” The note in suit was executed to Nathan Sebee, and transferred by him to the plaintiff. Defendant t-esiSfies that on taking up -the note in suit he took 'i't home, 'and •placed it -in -his clock, and that, forgetting Where he had put i-t, he was unable -to- find -it until about la mlonth before the commencement of this suit, notwithstanding repeated searches. He is corroborated in this statement by members of His family. In his statement that he paid -the note he i-s corroborated by -the possession thereof; yet we th-ink, upon a careful reading of all the evidence, vh-at the preponderance is in -favor -of the conclusion that the note has not been paid. With the number of transactions which the -defendant had with the bank, the number of payments made by him at different times and -in different sums on the several notes, ‘it is possible for him to be confused in -hds recollection of the different payments in question. Finding himself in possession of this note, and not 'having any account or distinct recollection of the -several transactions, i't 'is natural 'that he should conclude that the note was paid, when in fact it was not. We are confirmed -in 'this view because of 'defendant’s inability to- state more specifically the time and amount of the payment. Defendant’s possession of the note, unexplained, would surely be a very strong circumstance in support of Ms claim of payment. We think, (however, that to view of the character and number of 'the transactions ¡had, possession is ¡accounted for, not conclusively, it Is true, but so as to materially weaken the presumption of payment. His notes were kept In a bunch, and wihen payments were made they were all laid out together. One or more notes were taken up by ‘defendant between ¡the time the plaintiff was known to have this -note and the time ‘it was missed from the bank. It was possible for 'the defendant to have thus come ¡into the passesssion of ■this note without payment, placed fit in the clock, and afterwards, not remembering in. detail the .payments ¡he had made, come to the ■conclusion -that this note had been paid. The same reasoning applies to the question ;of ¡the payment of ¡the one hundred ¡dollars to excess ¡of what was due. We ¡say again ¡that on neither quesu Oon I® the evidence entirely convincing as ¡to 'the claims of either party, yet, upon a careful view of the whole evidence, we are of .•the opinion ¡that the preponderance is with the plaintiff, and the judgment and decree of the ¡district count is therefore affirmed.  