24 Me. 490 | Me. | 1844
The opinion of the Court, Whitman C. J. holding the Court for jury trials in the County of Washington, at the time of the argument, and taking no part in tho decision, was drawn up by
This is a suit against Johnson, as principal, and others, as his sureties, on his official bond, as cashier of tho Frankfort Bank, made on October 9,1839. Two breaches are alleged. The first, that the cashier “ had received the sum of $8000, of money belonging to the bank, and given no credit for the same, nor in any way accounted for it in the books of tho bank.” The second, that “ he had improperly included in a settlement an item of interest on the notes and bills of said bank, over due, in order to make up his balance of assets equal to the liabilities, and equal to his leger account of notes and bills,” amounting to tho sum of $2273,24. The defendants obtained a verdict in their favor. The case has been presented by a bill of exceptions, and on a motion to set aside the verdict as against the weight of evidence; and it has been argued orally, and by one of the plaintiffs’ counsel also, in writing.
The motion to set aside the verdict will be first considered. The capital of the bank was $50,000. The deposition of the
The next ground, on which the plaintiffs claim to have the verdict set aside, is, that there was full and satisfactory proof, that a mistake was made in that settlement, by which the cashier did not account for the two items claimed in this suit. The most material testimony relating to each of the two items will be examined separately. The claim to recover the sum of $8000, arises out of the loan procured from Read & Co. The cashier receipted for those notes to the president, and much reliance is placed upon the effect of that receipt. It should not however bind him, much less his sureties, if it should appear, that he did not in fact receive those notes as a part of the funds of the bank. And the testimony is quite satisfactory, if not wholly conclusive, to prove, that he did not in fact receive them. It appears, that he was ordered by the directors to indorse them in behalf of the bank, and that having done so, they were retained by the president, and by him passed to Read & Co. to procure funds for the bank; that they remained outstanding, unpaid, and not within the control of the cashier, at the time of the settlement. He does not appear to have had possession of them at any time, except for the mere purpose of obeying an order of the directors by indorsing them. The receipt for them appears to have been improperly required, and to have been given through a misapprehension of duty and of right. This disposes of so much of the testimony, as would charge him with them solely on the ground of that receipt. He would however be chargeable with, and should account for, any proceeds of them when received. There is a document, which shows, that he did, or
The documents do show, that the bank lost without his fault
As it respects the other sum claimed, the argument for the plaintiffs assumes, that the proof was conclusive, that “ interest on the bills and notes” to the amount of $2,273,24, was charged by the cashier and included in that settlement. How is that fact established? The account settled contains this item, “ for notes and bills discounted, $36,990,82.” If charged to the bank it was contained in that item. The only witness, who appears to have testified respecting if, was Mr. Bradbury. According to the bill of exceptions, he stated, that “ in the notes and bills discounted the columns were not added up; interest cast on notes and bills to Sept. 2, 1840. There was $2,273,24, interest on bills and notes, which made the amount carried into the trial balance; the face of the notes was only entered, being $36,987,66, without any interest; and the account was deficient the amount of the interest aforesaid, and the four $2000 notes, as appeared on the books.” If this witness stated correctly, that the face of the notes without any interest, amounted to $36,987,65, as the cashier charged the bank for them in the account settled but $36,990,82, there could be in that charge an excess of only $3,16. The witness also stated, that the item of interest “ made the amount carried into the trial balance,” and that the account was deficient to that amount; but he appears to have stated it to be so, “ as it appeared on the bank books.” And if by “ the trial balance” the witness intended, as is probable, to refer to one contained in the bank books, there would be nothing inconsistent in the
The questions of law presented by the bill of exceptions remain to be considered. It is contended, that Benjamin Shaw was not a competent witness, because he was responsible to the bank for his negligence and misconduct in making the settlement and cancelling the bond. This objection assumes it to be a fact already proved, that he had been guilty of them. Whatever may be the result of this suit, he will not thereby be relieved from such liability. A verdict for the defendants would not be legal testimony in a suit against him to prove, that the settlement was correctly made, or that the bond was properly cancelled, because it could only bo matter of record in a suit between other parties. It has been long settled, that such a contingent liability affects only the credibility, not the competency, of the witness. In the case of the Union Bank v. Knapp, 3 Pick. 96, the clerk, who testified that he made the mistake, which occasioned the suit, and that, if the money should be lost, he would sell his house or any thing else, if required, to pay it, was held to be a competent witness for the bank. It is also contended, that he was interested in the event of this suit, because certain depositions, taken at his expense, to be used in this and other suits, would be taxed in the bill of costs recovered by the defendants in this case, if they should prevail, and that Shaw would thereby be entitled to the whole expense, and to call upon Johnson for it, instead of the proportion agreed to be paid. But no such result would follow. Their agreement respecting the payment of that expense would not be altered or affected, nor could either of them obtain any new rights, by the use which might be made of them by either of the parties.
The next complaint relates to the instruction, “ that if the account was imperfect, it did not follow, that the deficiency was not made up on settlement, and might be paid without its appearing on the books.” The truth of this; as an abstract proposition, cannot be denied; and the jury were to judge, whether it was applicable to the testimony introduced. If it be alleged to be an unfair commentary upon the facts, juries are not bound by commentaries upon the facts, nor do they consider themselves to be. They will judge, whether they are founded upon a misapprehension, or even upon a perversion of the facts, if such a case may be supposed, and will give them such weight only, as they may deserve. The Court never refuses to, counsel the opportunity in a proper manner to correct any misapprehension or misstatement of the testimony; and the proper time to do it, is before the cause is fully committed to the jury. To such commentaries upon the testimony, whether perfectly correct and appropriate or not, a bill of exceptions cannot be taken. Jackson v. Carver, 4 Peters, 80; Ex parte Crane, 5 Idem, 198. These observations apply not only to this objection, but to several other remarks made by the presiding Judge upon the testimony. To the one contained in the next cause of complaint, “ that he was not aware, that the plaintiffs had offered any evidence, which they relied upon to show fraud';” and to. those relating to the crippled condition of the bank, to the intelligence of a witness, and to the probability, that he would suffer the amount claimed in this suit to escape his attention, or that it would be unnoticed
The next cause of complaint, so far as it has not been already noticed, is found in the instruction, “ that if the settlement was obtained, when there was a deficiency, by the fraud of the cashier by imposing upon the directors, or they aided him in the fraud, the plaintiffs could recover. But fraud was not to be presumed, but might be proved by circumstances more or less remote.” This instruction, so far as it embraced the matters connected with the settlement, was favorable to the plaintiffs, giving to them the benefit of any testimony tending to prove, that the settlement was under such circumstances procured by the fraud of the cashier acting separately or with the aid of the directors. If the counsel did not consider it to be sufficiently comprehensive to embrace every possible mode, in which the cashier might have been guilty of fraud in that settlement, they should have requested more full instructions. There can be no doubt, that the law as stated, was correct.
The last and most material cause of complaint, as found in the instructions, is, “ that the vote of the directors of September 2, 1840, and the cancellation of the bond, if made in the presence of the directors there present, was conclusive against the plaintiffs, unless the plaintiffs had satisfied the jury beyond a reasonable doubt, that the settlement was made through mistake, or ignorance of a deficiency, which actually existed ; that if there was a deficiency, and the directors had full knowledge of it, and no fraud was practised by the defendant, the plaintiffs could not recover, as it was competent for the directors to allow the cashier such sum, as they pleased, if it were ten thousand dollars, as between them, and if so, and a settlement made without fraud of defendants, the settlement, would be a defence.” And that “ no fraud in the directors would annul or avoid the settlement unless participated in by Johnson.” It will be necessary to examine separately the legal propositions contained in the different clauses or sentences. That respecting the vote of the directors and the cancellation of the
There remains one other cause of complaint, that the presiding Judge refused to instruct the jury as requested, “ that if any one or more of the directors, who approved the settlement of the 2d Sept. 1840, acted under a mistake in so doing, the remainder of said directors voting would not constitute a legal
The exceptions and motion are overruled.