I concur in the above and foregoing opinion, with the following observations:
It was alleged in the complaint and denied in the answer that plaintiff was the owner of the two checks in question. Apparently no request was made for express findings, but in the judgment it is recited that the court "finds the issues in favor of the defendant and against the plaintiff and the judgment should be given and made herein accordingly." *Page 503
It seems clear from the record that the court was not unjustified in finding that the checks in question did not belong entirely to Mrs. Ludwig, but belonged partly to Mrs. Hutchison, and that the latter's interest in them was apparently not less than the amount of $9,504.48 sued for by the plaintiff.
Both Henry W. Ludwig, Jr., and Ernest F. Ludwig, the purchasers of the undivided one-third interest in the garages, testified that the $26,700 represented only a portion of the purchase price; and the testimony also showed that as part of the transaction they released all claims upon their father's estate, and that before completing the purchase they required like releases and also quitclaim deeds from Mrs. Hutchison. Apparently, therefore, their purchase included the latter's interest.
In her discussion with Mr. Fousek relative to a joint banking account, and relative also to a joint safe deposit box, Mrs. Ludwig referred to the fact that she had had authority as an agent to enter her husband's safe deposit box in another bank, but found that it was terminated by his death and that she was not permitted access. The testimony also shows that after the death of H.W. Ludwig, Sr., unrecorded and apparently undelivered deeds and bills of sale were found in his safe deposit box and that Mrs. Ludwig then said to Mrs. Hutchison: "Oh, he made out deeds and bills of sale, but they are not recorded. Now, the boys can come in for their share because these papers were not recorded previous to Dad's death. * * * He [Mr. Hutchison] must come up because since these papers haven't been recorded we are bound to have a lot of trouble with these boys, and the local attorneys are liable to join in with them." Apparently, in addition to the house and the garage interests, the estate of Mr. Ludwig consisted only of $165.73 cash in bank and $866.15 insurance proceeds.
In the state of the record it seems that the two sons, who with their father had owned the Ludwig garages, undoubtedly took these facts into consideration in purchasing the outstanding one-third interest. It is not entirely clear whether there were any other heirs, but it would seem that in any event Mrs. Ludwig was entitled to only one-third of the father's share, and that the remaining two-thirds thereof became the property of the *Page 504 other heirs, including at least Mrs. Hutchison and her two half-brothers, and possibly also Joan Ludwig, whom Mrs. Hutchison mentioned as her half-sister. Undoubtedly the two brothers took their own interest as heirs into consideration in making the purchase. If there were no other heirs, it would seem that the $26,700 represented Mrs. Ludwig's one-third interest in the estate and Mrs. Hutchison's two-ninths interest, so that only three-fifths of the $26,700 belonged to Mrs. Ludwig. If Joan Ludwig was an heir and her one-sixth interest was included, the $26,700 represented in addition Mrs. Ludwig's one-third interest and Mrs. Hutchison's one-sixth interest, so that only one-half of it belonged to Mrs. Ludwig. The burden being upon plaintiff to prove ownership in that portion of the checks represented by the money sued for, and plaintiff not having explained away Mrs. Hutchison's apparent interest to the satisfaction of the trial court, it cannot be said that the court was in error in finding against her upon that issue.
There was further testimony by Mr. Fousek as well as by Mr. and Mrs. Hutchison to the effect that Mrs. Hutchison was to receive $10,000 as soon as the garage deal had been completed, though whether by reason of her interest in her father's estate or otherwise does not appear. Mrs. Ludwig denied this but did not deny a number of other statements collateral thereto, and it cannot be said that the district court erred in refusing to accept Mrs. Ludwig's testimony upon the point rather than that of the other three witnesses. This is particularly true in view of Mrs. Ludwig's denial that at the time of opening the account she had any idea of disposing of the garage interests, although apparently the negotiations were then in progress and at about the same time she was requesting Mr. Hutchison to come to Montana to help in the negotiations, having found the property interest more considerable than had been expected.
In view of Mrs. Hutchison's apparent interest as an heir of her father, or under her mother's promise as to the $10,000, or both, it seems clear not only that the trial court was justified in finding that plaintiff had not established her right to the money in controversy, but also that Mrs. Ludwig was apparently not prejudiced by the transactions in question. *Page 505
If Mrs. Ludwig was entitled to judgment in this case, it would be because her son-in-law, to whom she gave power of attorney to dispose of the garage interests and to deposit the proceeds in her name in any bank, had, in order to defraud her, improperly caused the proceeds to be deposited in the joint account, and because the bank had performed an act or default contributing to such fraud by accepting the checks for deposit without endorsement by Mrs. Ludwig or her attorney in fact. This suggests the further query what the bank's duty would have been had the checks been so endorsed when presented for deposit, or had the deposit been in cash. But these questions are automatically eliminated because of the fact that there is ample credible testimony in the record, which the trial judge apparently believed and was entitled to believe, showing that no fraud was committed in depositing the checks in the joint account, for the reason that they constituted the joint property of Mrs. Ludwig and Mrs. Hutchison, and that in any event the amount in suit does not exceed the latter's interest therein.
It seems to me, therefore, that regardless of the technical question whether the defendant should have accepted the checks for deposit in the joint account without an endorsement by Mrs. Ludwig or by Mrs. Hutchison as her attorney in fact, there is not sufficient evidence in the record to indicate that Mrs. Ludwig has been injured by the transaction; and that the district court was not in error in finding the issues and entering judgment for the defendant.