For the purpose of clearing away the cloud of dust that seems to envelop this case, I propose to first ascertain what the case *Page 493 is, and what the issues were that were to be tried in the district court.
The complaint alleges that on December 1, 1886, the defendant made, executed and delivered to the plaintiffs a certain promissory note, which at the commencement of the action was, with a portion of the interest, due and unpaid, and for which it asked judgment.
The answer as to the note consists of denials only. It denies that the defendant ever made, executed or delivered the note in suit. Neither want of consideration, fraud in its execution, estopped or payment is plead. To cite authorities to the effect that unless pleaded neither of these defenses should be considered is carrying coals to Newcastle, but I will refer to the following: Pom. Rem. Rem. Rights, Secs 664, 675, 709, 712, 730; Bliss, Code Pl. Secs. 211, 269, 274, 357; Sharon v. Minnock,6 Nev. 377; Hanson v. Chiatovich, 13 Nev. 395.
This, then, was the sole issue to be tried: Was the note the defendant's note? If it was, judgment should go against it; if not, in its favor. A corporation can act only through its officers or agents. When we wish to ascertain what a corporation has done, we ask what its authorized agents have done. In this country, for all practical purposes, the board of trustees is the corporation, so far at least as its relations to the public are concerned. (RailwayCo. v. McVay, 98 Ind. 391.) In this case there is no question but that the power to execute promissory notes rested in the board of trustees. As the note of 1879, which had been executed alone by the president and secretary, had been recognized and acted upon by the corporation for a number of years as a legal and binding obligation against it, it admits of large question whether these officials were not impliedly authorized to execute also the note in suit (Wilcox v. Railroad Co., 24 Minn. 269; Mechem, Ag. Secs. 84, 274; Story, Ag. Secs. 55, 87); but I will pass that by and look only to the acts of the trustees. That body could have authorized its execution in the first place or they could subsequently ratify the act of making it. (Story, Ag. Sec. 244.) In Cook v. Tullis, 18 Wall. 332, 338, Justice Field, said: "The ratification operates upon the act ratified precisely as though authority to do the act had been previously given." The same principle applies equally to corporations. (2 Mor. Corp. Sec. 618.)
There was no formal resolution of the board ratifying the *Page 494 making of the note, but the evidence is to my mind overwhelming and conclusive that they did so ratify it by silence and acquiescence, and are now estopped to question its validity. In Kelsey v. Bank, 69 Pa. St. 426, 429, the court uses this language: "The law is well settled that a principal who neglects promptly to disavow an act of his agent, by which the latter has transcended his authority, makes the act his own; and the maxim which makes ratification equivalent to a precedent authority is as much predicable of ratification by a corporation as it is of ratification by any other principal, and it is equally to be presumed from the absence of dissent." Again, inMurray v. Lumber Co., 143 Mass. 250, the court said: "When the alleged principal is a corporation, a ratification may be shown by proving that the officers who had the power to authorize the act knew of it and adopted it as a valid act of the corporation, although no formal vote is passed by them." Mr. Morawetz says: "The ratification by a corporation, acting through one of its agents, of an unauthorized act performed by an inferior agent, may be shown in the same manner as a ratification by the company directly. Acquiescence is good evidence of consent, and if the agents of a corporation who have the power to ratify an unauthorized act performed by another agent manifest no dissent after full notice, a ratification of the act may often be presumed." (Mor. Corp. Sec. 633.) In 1 Beach. Corp. Sec 195, the rule is stated thus: "Any officer or agent of a corporation may give validity to the unauthorized acts of his subordinates, provided they be of a kind which he might have authorized them to perform. Thus directors may ratify the unauthorized acts of their appointees or the acts of other corporate officers, which should not have been done without authority first obtained from the directors. * * * Ratification by directors may be made by accepting the report of a committee stating the facts, or by the acquiescence of a majority of the directors with full knowledge of the contract so ratified. Ratification may also be presumed from a failure to exercise promptly the right of disaffirmance."Sherman v. Fitch, 98 Mass. 59, was an action upon a mortgage executed by the president of the corporation without formal authority. The court said (page 64): "The remaining consideration relates to the authority of Sampson to execute the mortgage in behalf of the corporation. It is not necessary that the authority should be given by a formal vote. *Page 495 Such an act by the president and general manager of the business of the corporation, with the knowledge and consent of the directors, or with their subsequent and long-continued acquiescence, may properly be regarded as the act of the corporation. Authority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objection, as well as in the case of individuals. The absence of one of the directors in Europe could not deprive the corporation of the capacity to act and bind itself by the acts of the officers in actual charge of its affairs." Hundreds of authorities could be cited to the same effect, but these are sufficient to demonstrate that, if a board of trustees of a corporation, or a majority of them, know of and acquiesce in the making of a promissory note by an unauthorized officer, it becomes the note of the corporation. Upon this point it only remains to show from the evidence that such was the case here.
In 1875, the plaintiff purchased a note against defendant for the sum of two thousand dollars. On August 2d of that year, by resolution of the board of trustees, a new note was duly made and delivered to him in place of the old one. Interest was paid on this every month up to 1879, when it was renewed by the president and secretary, but without any formal authorization by the board of trustees. Interest was regularly paid on this note up to 1886, when it was again renewed by the giving of the note in suit, on which interest was paid up to 1889. I do not overlook the fact that from 1881, the interest so paid was charged to Mr. Helm, but that fact, as I will hereafter show, is immaterial, and is certainly immaterial to the question now in hand, which I will again repeat, is simply whether this note is the note of the corporation. From 1881 the board consisted of Mr. Helm, the president, Mr. Richard, the secretary and Mr. Yerington. Two of these trustees, composing a majority of the board, signed this note. These two could have met at any time, and either with or without the consent of the third, could have entered upon the minutes a formal order authorizing the making of the note or ratifying it after it was made. The fact that they also occupied the positions of president and secretary would in no manner curtail their power as trustees. These two — a majority of the board — certainly knew of and acquiesced in the continued existence of the note of 1879, and as they made the note of 1886, and knew all about it, there is not much chance to say that *Page 496 they did not, as trustees, acquiesce in and ratify their act as president and secretary in executing the latter. This, under all the law that I have found or have knowledge of, made it the note of the corporation, and entitled the plaintiff to the judgment obtained by him. In Dexter,Horton Co. v. Long, 2 Wash. St. 435, where a somewhat similar situation existed, the court said: "Another objection raised by the appellant is that the mortgage was not executed by the trustees of the defendant corporation, but that the president and secretary by whom the mortgage was executed had no authority to enter into such a contract, and that it was therefore ultra vires. Even conceding that the contract was ultra vires, and that the appellant has placed himself in a position in this case to legally allege it, under the testimony in this case it will not avail against the plaintiff. The corporation was attempting to execute a bona fide mortgage. It was within the power of the corporation to execute it, and its officers and agents were trying to carry out the will of the corporation. There were but three trustees, and two of them signed the mortgage, but not as trustees. They did not go through the form of an authorization by resolution, but a majority of those who had power to pass the resolution, by a short cut brought about the result which the resolution would have authorized."
In regard to the want of action by the board, Mr. Helm testified:
"Question. With reference to the note of 1879, was the making of that note, or the execution and delivery of that note of July, 1879, to Mr. Wright, ever ratified by the board of trustees of the corporation?
Answer. I always supposed that the note had been authorized by the board, and how it happened that the record was not made of it I cannot tell. * * *
* * * * * * * * * Q. It was the same course of proceeding with reference to the note issued December 8, 1886, that was proceeded with reference to the issuance of the note of 1879; that is, there was no ratification or authorization of either, so far as the records show, or so far as your recollection serves you?
A. I never thought about it being required by the by-laws."
If these two trustees that signed this note had entered a formal resolution upon the minutes, directing or ratifying its *Page 497 execution, there could then be no question that it would be the note of the corporation; and under the circumstances existing here, to make the case turn upon the fact, that they neglected to do so, or overlooked the necessity of its being done, is in my judgment to sacrifice justice to the veriest technicality.
But if these two trustees had had nothing to do with the execution of the note, and had known no more of it than Mr. Yerington did, under the uncontradicted evidence in the case the corporation should still be held to be estopped by acquiesence and laches from contesting its validity.
Mr. Richard, the secretary, testified as follows:
"Question. Did you, as secretary of the defendant corporation, make out and submit to the board of trustees of defendant, at its meetings held at various times between December 8, 1886, and August 1, 1889, and also between December 8, 1886, and the date you became secretary of the defendant, statements and balance sheets showing in gross that this note with other indebtedness, was, during said time, outstanding, and also that interest was being paid on it monthly by the company to Wright?
Answer. I did.
Q. Was there ever any objection raised at any time to the payment of the interest on this note?
A. No, sir.
Q. No member of the board ever objected to the payment of the interest?
A. Not until the time of its discontinuance.
Q. That was in 1889?
A. Yes, sir.
* * * * * * * * * Q. The note of 1886 appears on your books as an outstanding indebtedness?
A. Yes, sir.
Q. Why was bills payable never credited to that?
A. I am not aware of that; I presume the credit is there."
Then, during all these years, the books of the company showed that this note was a part of its outstanding indebtedness. In every report made by the secretary it was included as a part of that indebtedness, and these reports showed, as of course the books did, that interest was being paid upon it every month. In addition, every member of the company must have known, if he knew anything about the company's business, that *Page 498 the two thousand dollars borrowed to pay the note were still in Mr. Helm's hands.
Mr. Yerington testified that he did not know of the existence of either the note of 1879 or of 1886, but if not, with all these means of information before him, it must be admitted that he was not paying very close attention to the affairs of the company. It is possible that he had such confidence in the other trustees that he did not attend the meetings of the board, or paid but little attention to the business when he did; but it is hardly necessary to say that, under the circumstances, such voluntary want of knowledge upon the part of one or all the trustees should not relieve the company of a liability that would have existed if they had had such knowledge. Every member of the company had such knowledge or such notice and means of knowledge of the note that he must be held to have known it. It is one of the simplest principles of justice that a man must not shut his eyes to the means of knowledge surrounding him and then claim that he did not know that which he could so easily have ascertained. If his confidence in others has misled him, he, or the company he represents, and not another, who had no means of knowing of the ignorance of the first, should suffer the consequences Under the circumstances shown by the testimony, Wright had no possible reason to suppose that Yerington and all other members of the company did not know of this note. The slightest examination of the books or reports, a mere inquiry as to whom or for what the company owed this money, would have made the whole thing clear. The authorities to the effect that want of knowledge, under such circumstances, constitutes no defense, are numerous and well considered.
In Morawetz on Corporations (section 630) the author says: "In some instances a principal may be estopped from repudiating an unauthorized act, of which he had no actual knowledge; as where the principal ought by reason of the relation of the parties to have known of the act, and cannot in equity and good conscience set up his ignorance. Nor can the shareholders of a corporation avoid responsibility for the unauthorized acts of their agents by abstaining from inquiry into the affairs of the company, or by absenting themselves from the company's meetings, and at the same time reap the benefit of their acts in case of success. If a shareholder fails to take the *Page 499 trouble of inquiring into the affairs of the corporation of which he is a member, or to attend its meetings, it seems no more than just that his supineness should be construed as an acquiescence in the proceedings of the majority." InOlcott v. Tioga Railroad Co., 27 N.Y. 546, where the question was whether the corporation had ratified the unauthorized act of the president in executing a bill of exchange, the court said (page 560): "But the subsequent rendering of accounts to the board of managers containing entries of such payments, unobjected to on the part of the board, affords a strong presumption of a ratification of those acts." In Conover v. Insurance Co.,1 N.Y. 290, 292, it was said: "And it is insisted that. in as much as the board never by any formal act gave their sanction, and the by-laws required the consent in writing of the directors to any conditional alienation by mortgage subsequent to the insurance, the consent in this case was unauthorized and void. I cannot subscribe to this doctrine. The directors were bound to know the uniform course pursued by their sole agent in the transaction of their business at their office, especially where regular entries of his acts were made in their books; and they must be held responsible on the ground of a tacit assent and approval unless they can show that by a strict vigilance and scrutiny into his acts they were unable to ascertain the course he was pursuing, and could not therefore arrest it or put the public on their guard."
In Jonas v. Agricultural Co., 38 Ark. 17, it was held that the directors are conclusively presumed to know the pecuniary condition of their company; and inCorbett v. Woodward, 5 Sawy. 403, 416, Deady, J., said: "Be this as it may, the law will not permit a person to become a director in a corporation, and neglect the duties and avoid the responsibilities thereof as to third persons with impunity. A voluntary ignorance of what it is his duty to know and understand is no excuse for him when the rights of others are in question. By becoming a director, which includes the taking of an oath to `faithfully and honestly discharge' the duties of the office, he engages to take good care of the interests of the stockholders and creditors intrusted to his charge, and this necessarily implies that he will use due diligence to keep himself properly informed concerning the same."
There is a distinction, sometimes drawn in the cases, but more often ignored, between ratification of an unauthorized act, *Page 500 and such acquiescence and laches in the matter as will be held to estop the principal from denying the want of authority. (2 Mor. Corp. Sec. 628.) It is unnecessary to more than refer to it here, for the reason that rejecting the plaintiffs testimony wherever it conflicts with that of the defendant, and taking the view of it most favorable to the defendant, as under the circumstances we are required to do, it shows both ratification of the note by the corporation, and such facts as should estop it from contesting its validity. There can be no question that the note of 1875 was a valid and binding obligation. If the corporation did not intend to ratify the execution of the note of 1879, taken in its place, it should have promptly notified the plaintiff and returned the old note, and then he could have still maintained an action upon the latter. Not having done so, but on the other hand, having paid interest on the new note, and recognized it in every way as the company's note, that also became a valid obligation that the plaintiff could have maintained an action on. The same remarks hold true of the note of 1886. Had its execution been promptly repudiated, the plaintiff could still have maintained an action on the old obligation. Not having been, but on the contrary having allowed the plaintiff to rest in the belief that the new note was regular and valid, until the old one was perhaps barred by the statute of limitations, and at least never returning or tendering it to him, to allow the corporation to now repudiate the note operates as a fraud upon the plaintiff and the company should be held estopped to make such a defense. "This principle is believed to be applicable to all cases in which the parties acting in the belief that the agency is valid, have suffered a change of circumstances, and cannot be restored to the position in which they would have been if the agency had been repudiated immediately upon notice of the unauthorized act." (Hallett, J., in Union Gold Min.Co. v. Rocky ML Nat. Bank, 2 Colo. 248, 262.) This case, which is very much in point and quite instructive, was three times before the supreme court of Colorado, and was subsequently confirmed in the United States supreme court (96 U.S. 640). It was there held that where the president of a mining company was informed of an indebtedness incurred without authority by the general manager, and the company did not within a reasonable time repudiate the act of the manager in borrowing the money, such notice to the president was notice *Page 501 to the company, and the jury would be authorized to conclude that the company had consented to what had been done in its name. In a concurring opinion, Wells, J., said (2 Colo. 265): "I grant that if by such attention to its affairs as a man of ordinary prudence in the like case would have exercised the corporation might have informed itself of Becker's doings, it is the same as if they had actual knowledge. The corporation ought not to be heard to say that it did not know that which by the ordinary diligence which the law exacts of them they might have known." I deem it unneccessary to follow this further, except to add, to avoid misunderstanding, that the plaintiff, having had no call or opportunity for pleading this estopped, may, contrary to the rule that should be applied to the defendant, rely upon it without such pleading. (Clink v. Thurston, 47 Cal. 21; Bigelow, Estop. 584.)
The foregoing will sufficiently indicate the ground upon which I think the case should be decided; but under the circumstances, 1 deem it proper to follow it up a little further. I must confess that I have found it quite difficult to determine from the opinion of my learned associates just what ground or grounds they have placed their judgment upon. With all deference, it seems to me that, while no one of them is in the end relied upon, the doctrines of payment, want of consideration, ratification, and other subjects, are quite confusedly mixed together; perhaps upon the theory that, even though no one of them may be sufficient, all put together must be. They seem, however, among other things to hold that what took place in 1881 between Wright and Helm constituted a payment of the company's indebtedness to Wright, a transfer of their liability to Helm, and in some manner prevents the note of 1886 from being the company's note. In my judgment, under the pleadings and circumstances existing here, it should make no difference in the result whether it did or did not constitute a payment of the note of 1879 Wright claimed that it did not, and the note of 1886, upon which the action is brought, was made in place of the old one. As so often stated, the question is, is this the company's note? But it could be their note even though they owed Wright nothing, the same as an individual might make a note even though he owed the payee nothing, and received no consideration for making it. If the note of 1879 was paid, then that note might be no sufficient *Page 502 consideration for the note of 1886, but that would be its only possible effect; and as no want of consideration is pleaded, under all rules of pleading that should cut no figure in the case. To illustrate: If the execution of the note had been formally authorized by the board of trustees, then certainly there could be no question that it was the note of the corporation; but if the indebtedness had been paid in 1881, the defense of want of consideration might still exist. At any rate, this matter does not help us the least bit to determine whether the company has through its representatives ratified the execution by its president and secretary of the note in question, so as to make it the company's note, and consequently it is entirely immaterial.
But if mistaken in this, and it be material, then it seems clear that the transaction of 1881 did not constitute payment, nor in any manner release the company from its obligation to pay Wright the money due either upon this note or the one of 1879. Neither by pleading nor proof is it claimed that there was any fraud, deception, misrepresentation or concealment in that matter, nor does it appear that any was intended or contemplated. We have, consequently, only to analyze the transaction and to determine what was really done there and its legal effect.
As the plaintiff denies the conversation with Helm in toto, the view most favorable to the defendant is to adopt Helm's version of the matter. Mr. Helm testified as follows: "I got home Sunday, and on Monday following I met Mr. Wright and I told him I had the money to take up that note. We went to Wells-Fargo, where he had a tin box. He went into the vault, got the box and brought it on the counter, opened the box, took out the note, held it in his hand. I said to him that I was in a tight place myself and I said to him, `Sam, you don't need this money, and I need it awful;' and I said, `I will give you my third of the Water Company's stock as security, and let me keep this money.' * * * I had three hundred and thirty-three shares, and I said `Give me this two thousand dollars and you can have the stock;' and he asked me about the stock and how much there was of it, and finally he said, `I don't believe I want your stock, but let it run as it stands and you can pay it in a few months, and you can pay the interest and let it be as it is and not make any change.' I objected to it, but he said, `Let it be as it is.' * * * I used the money represented by the *Page 503 check. Then I ordered the interest paid at the office charged to me.
Question, Do you know who drew the money represented by the check you speak of * * * whether you drew it or whether Mr. Wright drew the money?
Answer. I presume I did.
Q. Did Mr. Wright ever surrender to you the note of the Carson Water Company that he held against the company as his security?
A. No, sir.
Q. Mr. Wright never did surrender that note?
A. No, sir.
* * * * * * * * * * Q. You will not state that you delivered him a dollar or paid him the check for the Carson Water Company at that time?
A. I don't think I did."
There can be no dispute that in this tranaction Helm did not pay Wright any money, or transfer or deliver the check to him, or transfer or deliver anything to him. He received nothing from Wright, gave him no note or security, nor did he by word or deed become bound for the payment of any money to Wright. The whole transaction amounted to simply this: Wright got nothing, either in the way of money, notes or security; but as a matter of good-natured accommodation to Helm, and without any possible advantage to himself, did not insist upon the payment of the note at that time and agreed to let the matter stand as it was. On the other hand, he refused to surrender the company's note, and take Helm's note and stock in place of it. Helm was the company's agent to pay this money. Can any one claim that in his hands the check was not the company's property, and represented the company's money? Wright could have no title to it until it should be paid to him, and could in no manner have compelled Helm to pay it to him. If not paid, his only remedy would be against the company upon the note. When it was not paid, can there be any doubt that it was still the company's property, and that they could have compelled their agent to give it up to them? It follows that when Helm used it, it was the company's check and money that he used. The most that can be said is that Wright consented to Helm's keeping the company's money. Helm was the president and business manager of the company. Wright evidently looked upon *Page 504 him as being the same as the company. To Wright's comprehension, if Helm did not pay the money to him there was nothing to prevent his keeping it, and it would be all right. At any rate, it is not claimed that there was any fraud in the matter, or anything that estops Wright from asserting his claim against the company; so, if it was not a payment, it is immaterial what else it was. Admitting that it was wrong for him to consent to Helm's keeping the company s money, and that he was to such an extent his brother's keeper that he should have said: "No, you must not do this," still the question is not whether it was right, but whether, contrary to the understanding and intention of both, it constituted a payment of the note and substituted Helm as the plaintiffs' debtor.
Helm's acts show that he had a perfectly clear understanding of the transaction. He understood that the note was still an outstanding and binding obligation upon the company; but because he had used the money that should have gone to pay it, he was in duty bound to protect the company, both as to the principal and interest. Hence his statement to the secretary to charge the interest to him, and that he would protect the note at all hazards. Wright also understood that the note had not been paid, that the company still owed it to him. and he never made any claim upon Helm on account of it. To avoid misunderstanding, it should be stated that the evidence shows that his claim to offset his water bill against Helm's indebtedness to him was on other money that Helm owed him, and not on this note.
There can be no payment where the debtor gives up nothing, the creditor receives nothing, and neither party understands that any payment has been made. When Helm used this money he became the company's debtor; and if it has never been paid — as presumably it has not — he still owes it to them, but he owes nothing by reason of it to Wright. If Wright had only the same confidence in Helm that the company seem to have had, there was still no reason for him to think that his use of the money was not known to all, and entirely satisfactory, for no objection was made for some eight or nine years, and very possibly not until it was found that Helm was unable to replace it. It would hardly seem possible that under the circumstances existing here two thousand dollars could disappear from the exchequer of a company handling no more money than *Page 505 this one presumably handled, and every one interested in the company or paying any attention to its affairs not know all about it. Had the arrangement between Helm and Wright been made for the purpose of enabling Helm to defraud the company of the money, by inducing the belief that the note had been paid with it when it had not, and particularly had Wright represented to any of the company's officers that it had been paid, this would probably constitute a defense to the company, as Wright would be estopped to deny that such was the case; but it is not claimed by any one that anything of this kind exists here. No pretense was made by anybody that the note had been paid, or that the money was not still in Helm's hands.
It is said that an officer cannot ratify his own unauthorized act, and consequently I suppose that Helm and Richard, as trustees, could not ratify their act as president and secretary in issuing the note. This might be admitted, for as shown, the whole company had such knowledge, or such notice and means of knowledge as amount to knowledge, that by their silence, acquiescence and laches they have given validity to the unauthorized act; but it is unnecessary to do so. This rule simply goes to the extent that an officer who did not have authority to do a thing in the first place cannot, in the same capacity, ratify it so as to make it legal; but no case ever decided that an officer occupying two positions, one above the other, could not in the higher capacity ratify an act that he did not have authority to do in the lower capacity.
Again, it is said that Helm could not act in the execution or ratification of this note, because he was really giving the company's note for his own indebtedness to Mr. Wright. There would be something in this were it not based upon an assumption entirely unsupported by the evidence. As I think has been successfully shown, it was the company and not Wright that Helm owed, and the company still owed Wright. Giving the new note neither paid, released, extended, nor in any manner affected Helm's, debt to the corporation. Consequently it was entirely immaterial to him in his individual capacity whether the new note was or was not made. The only question in that transaction was whether they should pay the old note, or extend it by making a new one, and this was a matter to be determined only by the financial situation of the company and like considations. *Page 506
As to the case of Yellow Jacket Mining Co. v. Stevenson,5 Nev. 224, while it was perhaps upon the whole correctly decided, that part of the language quoted by my associates from pages 231, 232 of the opinion is not law, nor was it decided so to be in that case. It is dictum, and the opinion shows that even the judge writing it had doubts of its correctness, for he immediately adds (page 232): "But, however this may be, it cannot possibly be maintained that a corporation can be charged with acting upon or recognizing a fact which is known only to a minority of its trustees." This is the real ground of the decision — that is, that it had not been shown that a majority of the board knew of the transaction — and if not, the decision is doubtless correct upon that point, because as the minority could not by formal resolution either authorize the action in the first place or ratify it afterwards, knowledge and acquiescence upon their part could not have that effect; but in the case at bar it is shown that a majority of the board knew all about the whole situation, and that the company, by reason of the silence, acquiescence and laches of both the board and stockholders is estopped to deny its liability. Corporations should be held to the same principles of honesty and fair dealing that individuals are. But as they can only act through their agents, if acquiescence and laches upon the part of the agent will not constitute ratification and estopped by the corporation where it would in the case of individuals, then they are exempt from the rules applying to others. That a corporation may ratify or estop itself by the knowledge and acquiescence of its representatives in unauthorized acts, without the knowledge being received or acted upon at a formal meeting of the board or stockholders, see in addition to the cases already cited, Scott v. Railroad Co.,86 N.Y. 200; Scott v. First M. E. Church,50 Mich. 532; Hoosac Milling Co. v. Donat,10 Colo. 529; Kent v. Mining Co., 78 N.Y. 187;Fidelity Ins., T. S. D. Co. v. Shenandoah Val. R.Co., 32 W. Va. 257; Sheldon Hat BlockingCo. v. Eickemeyer Hat Blocking Co., 90 N.Y. 613;Smith v. Ayer, 101 U.S. 320; Phosphate ofLime Co. v. Green, L. R. 7 C. P. 63.
There are many other statements made in the opinion of my respected associates in which I do not agree, but the length which this opinion has already reached admonishes me that I should draw it to a close.
For the foregoing reasons I am of the belief that the judgment *Page 507 as entered in the district court was correct, and the order granting a new trial was wrong. I therefore dissent from the judgment.