Ludington State Bank v. Ostendorf
Ludington State Bank v. Ostendorf
Opinion of the Court
Plaintiff brought assumpsit on a promissory note executed by Ella Ostendorf and indorsed by Bernard Ostendorf, her husband, on July 15, 1933, for $3,649.30, less credit for payment of. $149.30 but with interest on the $3,500 balance to June 12,1936. The declaration set forth that plain-. tiff has authority to act for the trustees of the segre
Mrs. Ostendorf was the daughter of Lucy Rath, a widow of reputed means who died on May 23, 1932. Mr. Ostendorf, her husband, was a director of plaintiff bank. Some time prior to the execution of the note sued on and during the lifetime of Mrs. Rath, Mr. Ostendorf advised her to purchase 100 shares of General Motors Corporation stock through the bank; he suggested that it be paid with her note rather than in cash. As Mrs. Rath appeared to be amply responsible, the bank made the loan on her personal unsecured note. When the stock certificate arrived, Mr. Ostendorf took it to Mrs. Rath’s home; she indorsed it in blank, and Mr. Ostendorf returned it to the bank. After Mrs. Rath died, Mr. Ostendorf told the cashier of plaintiff bank that Mrs. Rath wanted Mrs. Ostendorf to have the stock, and he asked if the bank would transfer the stock to her and take Mrs. Ostendorf’s note indorsed by him in place of that of Mrs. Rath. This was agreeable and, accordingly, upon a new certificate No. D-137796
Defendants. claim that tbe stock certificate was originally left witb tbe bank by Mrs. Bath for safekeeping only, and that at most tbe bank bad a general lien on it for Mrs. Bath’s indebtedness, and that when tbe new certificate was issued, it was returned to tbe bank to secure Mrs. Ostendorf’s note.
Plaintiff claims that tbe certificate was originally delivered to it to be used as collateral for Mr. Ostendorf’s own obligations which amounted to $20,550, including a note of $736.25. Tbe $736.25 note was renewed from time to time up to January 9,1933, at which time it was renewed for tbe amount of $700. Tbe latter note was in collateral form, stating that it was secured by deposit of 100 shares of CurtissWright Corporation stock and certificate No. D.-137796 for 100 shares of General Motors Corporation stock, which also was collateral for any other indebtedness of tbe maker to tbe bank. Tbe new certificate for tbe General Motors stock, indorsed in blank, was placed in tbe file . relating to Mr. Ostendorf’s collateral in place of tbe former certificate. Plaintiff’s cashier testified that tbe former certificate bad been pledged for Mr. Ostendorf’s indebtedness before Mrs. Bath’s death.
Mr. Ostendorf testified, that tbe $700 collateral note of January 9, 1933, did not recite that tbe General Motors stock was pledged at tbe time be signed it, but that this part was later inserted in tbe instrument without bis consent; be also testified that be never read tbe collateral notes. Tbe trial court found from an examination of tbe instrument itself that all tbe typing was done by tbe same machine, witb tbe same color of ribbon, and at tbe same time.
Notice of intention to sell the pledged collateral, dated March 18, 1936, was sent to Mr. Ostendorf; he did not protest. He testified, “I thought, let them go ahead and burn their fingers.” On June 12,1936, the bank notified Mr. Ostendorf that it had sold the securities and applied the proceeds on his notes; none of it was applied on the note here sued on. Mrs. Ostendorf admitted that her husband showed her the letter of March 18, 1936, but she did nothing about it until the filing of the instant suit.
As defendants admitted the indebtedness declared on, but pleaded an affirmative defense and counterclaim, the burden of establishing their position was on them. The trial judge as trier of the facts declined to accept their explanation. He rejected the theory that the stock was left for safekeeping or as collateral for Mrs. Rath’s note or for that of Mrs. Ostendorf, but believed the testimony of plaintiff’s cashier that it had been pledged by Mr. Ostendorf to secure his indebtedness. The instruments signed by Mrs. Rath and Mrs. Ostendorf were not in form collateral notes, and no memorandum was attached or noted. The only note collateral in form was that of Mr. Ostendorf, which was renewed by the $700 note of January 9, 1933, made after Mrs. Rath’s
The trial judge felt that the bank records were worthy of credibility. He believed that the collateral loan note of Mr. Ostendorf for $700, which listed the Curtiss-Wright and General Motors stock, correctly indicated the intended nature of the transactions ; a memorandum indorsed on the collateral file of Mr. Ostendorf, made in the course of business, shows that the original General Motors certificate was forwarded for transfer, and the new certificate was replaced in the file. He stated that none of the records displayed any indications of irregularity or alteration.
It appears that Mrs; Rath had considerable means at the time she ordered the stock, and that it would seem reasonable for the bank to be willing to carry her unsecured note for the purchase price of the stock, and then accept the unsecured note of Mrs. Ostendorf because she acquired a substantial part of her father’s estate on Mrs. Rath’s death. The safekeeping theory was entirely rejected, for there was never any receipt or other plausible evidence that safekeeping was the only reason for leaving the certificate at the bank.
The trial court is sustained in his findings. The problems in the case are essentially fact questions. We agree with the trial court’s conclusion that the
Defendants claim that plaintiff bank was not a good faith holder of tfie certificate, but that the undisputed proof indicates that tfie bank fiad tfie certificate in its possession only under a general lien to secure tfie indebtedness of Mrs. Rath and then that of Mrs. Ostendorf. Tfie findings of fact conclude that tfie certificate indorsed in blank was given to Mr. Ostendorf and then to tfie bank to secure fiis own indebtedness. Defendants do not point out any evidence in tfie record to indicate want of good faith except tfie alleged knowledge on. tfie part of Mr. Ostendorf of fiis want of authority to pledge tfie stock for fiis own debts, wfiicfi knowledge they claim is tfie knowledge of tfie bank because fie was an officer
The judgment is affirmed, with costs to plaintiff.
Reference
- Full Case Name
- LUDINGTON STATE BANK v. OSTENDORF
- Status
- Published