Meyer & Chapman State Bank v. First Nat. Bank of Cody, 248 F. 679

Meyer & Chapman State Bank v. First Nat. Bank of Cody

248 F. 679 | 8th Cir. | 1918

AMIDON, District Judge

(after stating the facts as above). [1] It is first objected by defendant that this court cannot consider any question of fact, as there was no request by the plaintiff for findings of fact and a declaration of law in its favor as foundation for an exception. Such would be the rule under ordinary circumstances. Security National Bank v. Old National Bank, 241 Fed. 1, 154 C. C. A. 1; Felker v. First National Bank of Cincinnati, 196 Fed. 200, 116 C. C. A. 32. But upon the peculiar facts of this case we do not think the rule is applicable. The case was suddenly terminated on the court’s own motion, without any reason, so far as the record shows, for either party to anticipate such a termination, arid without any opportunity to counsel to present requests, and judgment was immediately entered upon the same day in accordance with this decision. Upon such a state of facts we think the case must be treated the same as it would be if plaintiff had presented requests for findings of fact and a declaration of law in its favor, and reserved a proper excep*682tion to their denial. We are the more ready to do this because there is really no essential conflict in the evidence.

[2] Upon the merits we think the evidence shows without substantial conflict that plaintiff loaned the defendant $10,000 for 30 days upon the security of the Holm note with its collateral. Defendant applied that money to its own use, and has never repaid it. It is not important whether the Holm note was in fact the property of defendant. .The-question is: How did defendant’s cashier present the matter to plaintiff at the time the loan was made? The evidence clearly shows that he represented the paper as a'part of the assets of defendant’s bank, and that he offered it as collateral for a loan to his bank. Defendant- cannot escape the repayment of money, which it received and used, upon a showing that the note which it offered as collateral to the loan in fact did not belong to it. Whether that was so or not, the loan was certainly made to it. It received the money and used it upon a promise to its cashier to repay it within 30 days. That it has failed to do, and, upon the evidence before the court, the plaintiff was entitled to recover.

The judgment is reversed, with directions to grant a new trial.