Leach v. Hale. An assessment against a shareholder, however, does not authorize the seizure of the property of the bank for its liquidation. If the bank is liable for the payment of the tax, the liability is to be enforced by ordinary process of law. For the reason that there was no authority for seizing the property of the bank, the judgment of the General Term is Affirmed. LEACH V. HALE, Receiver, appellant. (31 Iowa, 69.) National banks-Powers of— Right of, to exchange securities. Where a National bank received on deposit United States bonds of one class for the purpose of converting the same into bonds of another class, held, (1) that the bank was not a mere mandatary or bailee acting without compensation, but was liable to the depositor for the value of the bonds on its refusal to deliver them on demand ; (2) that the business of receiving one class of United States bonds, to be converted into another, is within the scope of the powers conferred upon National banks by the act of Congress under which they are organized ; (3) that where a certificate of deposit is inadmissible as evidence for want of a proper stamp, parol evidence is admissible of the facts it recites. THE HE plaintiff avers in his petition that he deposited in the First National Bank of Keokuk $400 in 7-30 United States bonds, to be converted into 5-20 six per cent United States securities; that such bonds were at a premium of ten per cent, and worth $440; that a demand was made of the receiver of the bank for the return of one of the other class of bonds, which was refused; and that the conversion of United States bonds from one class into another was a part of the legal business of the bank from which it derived profit. A written receipt, executed by the cashier of the bank, was annexed to, and made a part of, this petition. *See Van Leuven v. First National Bank (54 N. Y. 671), post, but which was said in First National Bank v. Ocean National Bank (60 N. Y. 278), post, decided "no general principle"; Wiley v. First National Bank (47 Vt. 546), post; Weckler v. First National Bank (42 Md. 58), post; Fowler v. Scully (72 Penn. St. 456), post; First National Bank v. Pearson, post. Leach v. Hale. An amended petition was subsequently filed reciting substantially the same facts, but making no reference to the receipt above mentioned. The answer denies the allegations of the petition, and that the bonds were ever a part of the assets of the bank, or were ever appropriated or converted to its use. Trial by the court, and judgment for plaintiff. Among the facts found by the court were the following 1. The First National Bank of Keokuk was an association under the laws of the United States, doing a general banking business at the date the bonds in question were received by it. 2. That about that time its cashier advertised in a newspaper, published in Keokuk, that it would convert 7-30 United States securities into bonds called 5-20's without charge. 3. That at that time it was the custom of banks at Keokuk to convert one class of United States bonds into another as a part of their general business. 4. That plaintiff left with the cashier of the bank $400 in United States bonds, to be converted into bonds of another class. 5. That the cashier of the bank executed a receipt for said bonds set out in plaintiff's petition. 6. That, while the bank advertised that it would convert United States securities without charge, it was in some form compensated therefor. Motion by defendant in arrest of judgment and for a new trial on the following grounds: 1. The petition does not state a cause of action. 2. The facts set out show a tort if any thing, and the cause of action set out in the petition is ex contractu. 3. The decision of the court is not sustained by the evidence and is contrary to law. 4. The facts found are not supported by the evidence. Motions overruled, and judgment for plaintiff. Defendant appeals. R. P. Lowe, for appellant. W. B. Collins, for appellee. BECK, J. We will notice the objections made by defendant's counsel in the order they are discussed in the printed argument. The first point presented for our consideration is this one: The transaction, which is the foundation of the action, amounts in law to a bailment and not to an indebtedness or promise to pay money. Leach v. Hale. The petition claims recovery as upon an indebtedness or promise to pay money; judgment, therefore, cannot be rendered thereon. In support of his views defendant's counsel argues that, from the evidence, it appears that plaintiff deposited certain bonds with the cashier of the bank to be exchanged for other bonds, and that this service was to be rendered by the bank without compensation. He concludes that the transaction is a bailment in the nature of a mandate. In considering this question we will look to the findings of the court to determine the nature of the transaction. The question, whether the findings are supported by the evidence, will be hereafter considered in passing upon the objections made to them by defendant. We will also concede that the transaction was within the scope of the bank's business, and that it had power to receive and convert the bonds of plaintiff. This is denied by defendant and a question raised thereon, which we will consider in its order. The transaction, in the light we are now considering it, amounts to the deposit of certain securities with an undertaking to return those of a different class, and was within the scope of the general business of the bank. The court made no finding as to the fact whether the bank received, in this particular case, compensation, though it is found that generally for such business it was in some form compensated. As to the liability of the bank the transaction is governed by the same rules which would apply in the case of the deposit of money to be repaid in different currency, or the receipt by the institution of commercial paper for collection. Can it be claimed that the deposit of a draft in bank, under a special agreement that it shall be collected and the proceeds paid in gold or United States securities, creates a bailment in the nature of a mandate? We are unable to see any distinction between a transaction of that kind and the one before us. If no agreement was made for the payment of compensation to the bank, or if it was agreed that none should be paid, in neither case is its liability different from the case of deposits of money securities or commercial paper for purposes within the limits of its general business. Institutions of this kind, in dealing in such property, are compensated for their services by direct benefits to their business. It would startle the financial and commercial world to announce the rule contended for by defendant's counsel, that banks receiving securities from their customers for a purpose within the limits of Leach v. Hale. their proper business, even without compensation, are liable only as mandatary? In our opinion the bank's liability on account of the transaction, as it appears from the court's findings, is sufficiently set out in the petition, and judgment was correctly rendered thereon. It is next claimed that the transaction in question is not within the range of banking business authorized by the act of Congress under which the institution exists. The act referred to confers upon National banks organized under its provisions authority to exercise "all such incidental powers as shall be necessary to carry on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money upon personal security; by obtaining, issuing and circulating notes according to the provisions of this act." It is argued that the business of receiving from the customers of the bank one class of United States bonds to be converted into another is not within the scope of the powers conferred by this act. We are not informed by the record as to the acts that were necessary to have been done by the bank in order to "convert" bonds of the government from one class to another. It may have been done by forwarding the bonds to be converted to the proper officer of the government, and receiving from him in return their equivalent in a different series; or it may have been accomplished by their sale and the purchase of the kind desired. We think the bank, under the provisions of the act above cited, was clothed with authority to pursue either course in order to "convert" the bonds of its customers. It was authorized to receive deposits. It cannot be doubted that it might have received deposits of United States bonds, and certainly such deposits could have been received under a contract to return bonds of another class in their place. It was empowered to purchase and sell such bonds, and, undoubtedly, it was within the limits of its power to sell plaintiff's bonds when deposited with it and buy others to be returned in their place. We are unable to see why these transactions may not have taken place with the proper officer of the government, the bank delivering to him one class of bonds and receiving in return another. It is the policy of the government to encourage the purchase and sale of its bonds and to facilitate transactions in them, for thereby their value will be enhanced and the credit of the government in a meas Leach v. Hale. ure promoted. It is not probable that Congress intended to impose restrictions upon the National banks, the most numerous class of financial agents in the country, which would operate to prohibit dealing in the securities of the government in a manner usual among bankers and banking institutions. The effect of such legislation, it is apparent, would tend to discourage transactions in these securities, and in a measure operate to lessen their value. The receipt given by the cashier of the bank, it is claimed, is not sufficiently stamped and was, therefore, improperly admitted in evidence. The record recites, that when offered in evidence, objection was made to its admission on account of the want of a stamp; that it was received subject to the objection, which was to be afterward passed upon. No further mention is made in regard to the objection, nor is it stated what ruling was made thereon. Neither does it appear that the court based its finding of the fact of the delivery of the bonds to the cashier of the bank upon the receipt. There was other evidence before the court competent to establish the transaction. Parol evidence is admissible for that purpose. The petition does not claim recovery upon the receipt; it is not set up as the foundation of the action, but is referred to as evidence of the fact of the delivery of the bonds and failure to return them by the bank. Admitting that the receipt is not competent, the facts it recites are sufficiently established by other evidence. Its admission, if it was considered as evidence, was, therefore, error without prejudice. It may be conceded that the contract between the plaintiff and the bank is embodied in the receipt, yet, if it is void, that contract may be proved by parol evidence. McAfferty v. Hale, 24 Iowa, 356 Such evidence was properly admitted under the pleadings. It is finally objected that the findings of the court are contrary to the evidence. We have given the evidence careful consideration and are of the opinion that the conclusions of the court are well sustained. The judgment of the court is Affirmed. |