Scandinavian-American Bank v. United States Nat. Bank

LEWIS, District Judge, after stating the case as above, delivered the opinion of the Court. [1] A comparison of the requested findings of fact by plaintiff in error with those made by the court, discloses that the former were, to a great extent, but a repetition of the substance of the latter, except as to matters which we deem immaterial to the issues; and that the requested conclusions of law which were attached to and followed them as claimed deductions, were grounds of asserted nonliability,—rescission, ratification and waiver when the storage arrangement was entered into, waiver and estoppel to claim the $2,450.18 of defendant, election of remedies by bringing the first action, and no damage. But from the facts found, indeed almost wholly admitted in the answer, it is established that the acts and conduct of plaintiff below on which rescission, waiver, ratification, estoppel and election of remedies is sought to be rested, were at a time when plaintiff was being fraudulently misled as to the true situation by the defendant Fargo bank, and which it succeeded in keeping covered up from the knowledge oí the Portland bank until after January 1, 1919. Those defenses were therefore precluded. [2] It is not claimed, nor argued, nor assigned as error, nor was objection made at the trial, that any of the findings made by the court is wholly without evidential support, nor that the court failed to make a material finding indispensable to the determination of liability under the issues. We can, then, go no farther than to inquire whether the facts found support the judgment, and whether during the progress of the trial there was error prejudicial to the plaintiff in error to which it saved exceptions. The E. A. Packer, 140 U. S. 360, 11 Sup. Ct. 794, 35 L. Ed. 453; Dooley v. Pease, 180 U. S. 126, 131, 21 Sup. Ct. 329, [810] 45 L. Ed. 457; Stanley v. Albany County, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Syracuse Tp. v. Rawlins, 104 Fed. 958, 44 C. C. A. 277; Barnsdall v. Waltemeyer, 142 Fed. 415, 73 C. C. A. 515; Tiernan v. Insurance Co., 214 Fed. 238, 131 C. C. A. 284; Bank v. Watkins, 119 Fed. 545, 554, 56 C. C. A. 111. [3] As to the first count, on collecting the $2,450.18 from Mikkelson the Fargo bank was at once obliged to remit to the Lumbermen’s National Bank or the U. S. National Bank its successor, the two having become one by consolidation and reorganization, as alleged and admitted in the pleadings. That obligation has never been discharged by the Fargo bank, plaintiff in error, by any one acting for it. When it received the draft on Mikkelson for collection and collected it, the law implied a promise on its part to remit the amount collected less its reasonable charges. The parties thence stood in a contractual relation, and the plaintiff below was the proper party to bring and maintain this action. No one else could do so. It is the only party interested in the subject-matter of this action and a recovery of the money collected for it. 15 Encyc. Pl. & Pr. p. 502, note. [4] As to the second count, from the special findings it appears that while the plaintiff below was laboring under the mistaken belief that Mikkelson had not paid its draft on him, created by the false and fraudulent acts and representations of the Fargo bank, it sent to the Fargo bank $406.35 which it was induced to do by said fraudulent conduct, and it incurred a liability for $525.55 in bringing and prosecuting the first action it brought while it was being so misled; and there is no finding that any of those amounts have been returned or paid to it. It thus appears that it has been damaged in the sum of $931.90 by the fraudulent acts and representations of the Fargo bank, which amount it was entitled to recover on the second count. Twenty assignments of error are directed to the admission and exclusion of evidence. They have been examined and considered, and we regard none of them as prejudicial to the rights of plaintiff in error. Affirmed.