Felker v. First Nat. Bank of Cincinnati

ADAMS, Circuit Judge (after stating the facts as above). [†, 2] The assignment of errors first challenges the ruling adverse to the-defendant upon an offer to prove the alleged breach of warranty or false representation in the sale of the merchandise by the United States Can Company to Rogers Canning Company. There having been no proof that plaintiff bank was acting in the matter of collecting the drafts as agent for the drawer or in any capacity other than that of bona fide owner, there was no error in that ruling. [202] Even if there was, no exception appears to have been saved by. the defendant to the adverse ruling upon which we could act. [3] The next error assigned is that “the court erred in finding that the plaintiff had purchased said drafts and was the owner thereof,” and we are asked to review the evidence taken before the court on that issue and reverse its finding. This we cannot do. When a jury is waived and a special finding of facts made by the trial court, an appellate court cannot review the evidence to ascertain its preponderance on one side or the other. The findings as made must stand if there was any substantial evidence to sustain them. [4] Whether that was the case may be made a question of law for review in an appellate court, by requesting the trial judge to make some declaration that there was no such evidence or to render a judgment for the appropriate party because there was no such evidence, and, upon his refusal to do so, taking proper exception and assigning error thereon. Dooley v. Pease, 180 U. S. 126, 131, 21 Sup. Ct. 329, 45 L. Ed. 457; Ward v. Joslin, 186 U. S. 142, 147, 22 Sup. Ct. 807, 46 L. Ed. 1093; York v. Washburn, 64 C. C. A. 132, 129 Fed. 564, 566; United States Fidelity & Guaranty Co. v. Board of Com’rs, 76 C. C. A. 114, 145 Fed. 144, 151, cases cited. No such question of law was raised or decided below and for that reason cannot now be considered by us. Section 700 of the Revised Statutes 1878 (U. S. Comp. St. 1901, p. 570) provides as follows: “When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.” No rulings in the progress of the. trial which were excepted to .at the time are presented by the bill of exceptions for our consideration. [5] The only other assignment is in effect that the court erred in rendering a judgment for the plaintiff. Unless we supplement this assignment by adding “on the facts found,” it presents nothing for review by this court. Bell v. Union Pacific R. Co. (C. C. A.) 194 Fed. 366, just decided. Assuming, therefore, that the assignment meant to challenge the judgment on the statutory ground that the facts found were insufficient to support it, it is entirely without merit, and cannot be sustained. The court found that the defendant received the drafts from the plaintiff for collection and actually collected them. This leaves no doubt of defendant’s liability under the complaint as amended except on the theory that plaintiff was not the real owner of the drafts, but was acting in the matter of their collection as agent for the drawer. This last-mentioned issue having been found against the defendant, plaintiff was on the pleadings clearly entitled to the judgment rendered. It is accordingly affirmed.