Darby v. First National Bank

The opinion of the court was delivered by Yeazey, J. In order to say that the transaction between the plaintiff and the cashier was the transaction of the bank, when it occurred, and was conducted by the cashier as a mere cover of an usurious transaction by the bank, this court would have to infer this fact from what is reported. The fact is not found, and yet is essential to the plaintiff’s right of recovery. It is not an inference of law; nor is it a mixed question of law and fact. It is purely a question of fact. The court cannot, upon the report of a referee, infer facts from other facts reported. Kimball v. Baxter, 27 Vt. 628. It can only pronounce the law upon the facts found by the referee. Fuller v. Adams, 44 Vt. 543. It is not the form of expression that is controlling. If, for instance, in this case, the referee had added a finding that in the transaction the cashier was not acting in his own behalf, but for the bank, it would have been equivalent to a finding that it was the transaction of the bank. The point is illustrated in the case of Alexander v. Bank of Rutland, 24 Vt. 222, where it was held, that if a referee reports such facts as'constitute an agency, the court can find the agency as matter of law, without an express statement of such conclusion by the referee. But such is not this case. Here the referee reports one set of facts tending to show the transaction was that of the bank, and another set of facts tending to show it was not, but was the individual transaction of the cashier; and does not submit to the court to find or infer the ultimate fact from what is reported, as was done in the [374] case of Durant v. Pratt, 55 Vt. 270, which was a cause in equity; but sa.ys that “if the court should be of opinion as matter of law from the facts” stated that the “ things done amounted in law to a mere cover,” &c., “and ought therefore to be held in law,” so and so, and that “in contemplation of law” said loan was made by the bank, then he finds that the defendant made the loan, &c. The right of the plaintiff to recover is made to depend on a fact not found, and which the court, as established in several cases, has no right to infer as a fact from what is found. When a referee cannot find a material fact, which some evidence tends to prove, it would be much better to so state, if it is necessary in drawing the report to state the evidence, in substance pro and con in reference to it. Any uncertainty in statement of conclusions by a referee should be avoided, as it is liable to lead to injustice in the decision upon the report. This report also fails to show that the defendant bank subsequently adopted the transaction as it took place. On this point, as on the other, the report states what was done, or what the evidence tended to show took place, when the notes were turned over to the bank, some four months after the original loan. The findings on this part of the case leave the bank free and clear of any usury. From these findings it appears that the bank paid the full face of the notes and has received only legal interest thereon. -It is not found that the bank ever became a party to, or a beneficiary of, the usurious feature of the transaction. It is strenuously argued that the defence is a pretence and a sham, and that the loan was by the defendant, and that the manner and form of the transaction was a mere cover and trick, as many of the facts reported tend to show. This may be so; but however convincing the argument ought to have been to the referee, or might have been to us if we were at liberty to infer the additional fact, no argument can supply a fact that is wanting and necessary to a recovery. Judgment reversed, and judgment for defendant.