171 P. 1106 | Or. | 1918
The answer denies the allegations of the complaint, and then pleads two affirmative defenses, the first of
The reply admits that Sheridan, who was president "of defendant, withdrew plaintiff’s money, but denies that he had any authority for such action. It will therefore be observed at once, that since the plea in estoppel was eliminated by the former opinion in this case, De War v. First National Bank, 80 Or. 260 (156 Pac. 1038), there remained but one fundamental issue in the pleadings, which is: Did the plaintiff authorize T. R. Sheridan to withdraw her money from the bank and lend it? If she did, she cannot recover in this action. If she did not, then the character in which he withdrew it is of no consequence, and whether he got possession of it in his capacity as president of the bank, or as a common burglar, would not in any degree affect the bank’s liability to its depositor. Upon this issue the plaintiff testifies quite positively that she did not authorize Sheridan to withdraw her deposit, while he with equal certainty asserts that she did. This presents a question exclusively for the determination of the jury, which by its verdict has decided the issue in favor of plaintiff. In the light of this situation let us consider the assignments of error.
“If you find from the evidence that at the time it is claimed the plaintiff’s money was loaned by T. R. Sheridan to A. M. Kelsay, and for sometime thereafter the plaintiff was looking to Mr. Sheridan to collect the interest and the principal and return the same to the plaintiff, and that she made no application to the defendant or any of its officers other than Mr. Sheridan for the return of such money, principal or interest, that would be a circumstance which you would have a right to consider bearing upon the question of defendant’s liability.”
This paragraph represents a class of requests which has been condemned by this court many times. In
“The law neither raised nor declined to draw an inference from the transactions alluded to by the court, and it was error to advise the jury of the effect of particular acts which, because of the nature of the controversy, constituted the cynosural facts, when there was evidence in the case which could rightfully be considered in the same relation.”
The cases there cited may be profitably examined upon the same subject. The request was properly refused.
“It is claimed also in this case that the evidence tends to show that the transaction by Sheridan was fraudulent in its nature; that is, that he, as president of the bank, had control of plaintiff’s money and that he used this position — that is, the president of the bank —in getting this money out without her authority, and that he loaned it or gave it over to a person who was worthless, financially insolvent, and that the money was turned back into the bank, crediting a worthless or poor account in the bank, and it is claimed that this was a fraud upon the plaintiff and that it was only a means or device used by Sheridan, using his position there in the bank, to get plaintiff’s money.”
‘‘The court will call your attention to what is claimed by the respective parties to be the evidence in this case, gentlemen, not for the purpose of telling you what the facts are, or giving you any impression of the court as to the facts, but in order that you may better apply the law as the court shall give it to you upon the facts as they appear in this case, or as you may find them to appear. You are the judges of the facts, entirely. It is only the duty of the court to instruct you as to the law applicable to the facts.”
It will be seen that the paragraph which is challenged does not purport to instruct the jury upon any question of law involved in the controversy, but merely to be a fragment of the court’s summary of the evidence as viewed from the conflicting viewpoints of the adversaries. It is unfortunate that trial courts should indulge in this practice. It is in no sense a part of their duties, and we wish to record our disapproval, but in State v. Brown, 28 Or. 147 (11 Pac. 1042), it was held not to be reversible error, and this view has never since been abandoned.
“I further instruct you that in this ease if yon find from the evidence that the plaintiff authorized the defendant bank through its president to find a good loan or loans for the plaintiff, that fact would not of itself authorize the president of the bank to sign the name of the plaintiff to a memorandum check or other check withdrawing plaintiff’s funds from the bank or transferred it to the credit of another. No one could lawfully withdraw plaintiff’s funds from the bank or transfer them to the credit of another unless expressly*548 authorized so to do, and if her funds were so withdrawn or transferred without plaintiff’s authority by T. E. Sheridan, as president of the defendant bank, then the bank itself is chargeable with knowledge of the fact that Sheridan had no such authority for the reason that the knowledge, as president of the bank, was the bank’s knowledge, and his act was the act of the bank.”
Defendant argues that this is misleading in that it tends to impress upon the jury that the plaintiff authorized the bank, through its president, to find a loan, and that the bank is chargeable with the acts of Sheridan as its president, and that it is contrary to the evidence. The testimony of the plaintiff upon the question of authority is as follows:
“I happened to be in the bank and we were talking —we got started to talking about the money and I will not say, or could not say how it was, but he advised me to put it out on interest. He said it is laying there and not doing any good and I told him I would not mind putting it out on interest, provided I could get good security and where it was perfectly safe and he said, ‘We are having calls every day, where it is just as good as gold’ and they could put my money out and there was nothing stated then — I told him I would not put it anywhere without consulting my husband and only for a short time if I put it out at all and I must have good security; and I considered good security would be a mortgage on some property, that it would be equal or better than the value of the amount.
“Q. Did you tell Mr. Sheridan at that time or at any other time that he might draw your money out and make a loan f
“A. No, sir, I supposed if we come to an agreement, I would have to take the money out.
“Q. Did you ever take it out?
“A. No, sir, I never did. I never was asked to.”
This testimony in our opinion justifies the language of the instruction, which, as a whole, simply states
Defendant also challenges the correctness of the following paragraph of the charge:
“I instruct you that if defendant, through its president, undertook to find a good loan for plaintiff and then, without further authority, said president transferred plaintiff’s funds to another account for the use and benefit, in full or in part, of the president of the defendant bank, defendant is still liable for any deposits of plaintiff’s so transferred; unless you should find that plaintiff, with full knowledge of the facts, has ratified or sanctioned such transfer of funds, and that bears upon the question of ratification; you are to bear in mind the instructions already given you upon that subject.”
What has been said about instruction No. 9 is a sufficient answer to the criticism of this instruction. Finding no reversible error in the record, the judgment is affirmed. Affirmed.