HOKE, J., dissenting. We have considered the petition to rehear this cause with that care which its importance deserves. Although impressed by the learned and well-considered supporting briefs filed by defendants, we are unable to discover that we have overlooked any authority or point called to our attention on the first hearing of the case. An examination of the original briefs discloses that every contention now made (except the newly discovered evidence) was fully presented at that time, and the opinion shows they were given due consideration. Upon reexamination we still think there was evidence which compelled his Honor to submit the question of notice as to the fraudulent character of the check sued upon to the jury, and that the instructions given were full and correct.
As to the newly discovered evidence, that consists of alleged statements made by F. S. Fagan, cashier, and by one of the directors of the plaintiff bank, Dr. Knight, since the trial of the cause and while it was pending in this court; it is contended that the alleged newly discovered evidence is important in that it goes to show that, outside of any constructive notice which it was claimed the plaintiff had of the limitations upon the authority of Hall under his contract with the defendant, the plaintiff had actual knowledge thereof.
We think that at best the newly discovered evidence is only cumulative in character, consisting of declarations alleged to have been made by plaintiff's witness since the trial to some of defendant's attorneys, and that it is of no great importance.
The check sued on was one drawn by Miss Parham, not by (164) Hall, and in pursuance of express authority given by defendant, as we have held. Any limitations imposed upon Hall's personal authority by his contract with defendant (which the newly discovered evidence is relied upon to fix the plaintiff with knowledge of), it would seem to us not to be decisive of the real question which controlled the Court.
It appears both from the majority and minority opinions that the vital questions were whether Hall and Miss Parham were engaged in a kiting business, and whether or not that fact was known to the plaintiff or could have been known by the exercise of reasonable diligence, and the further fact as to the authority of Miss Parham to draw the check sued on.
Were we triers of the fact, we might have reached a different conclusion, but the jury have found that the plaintiff had no knowledge of any such kiting, and that it could not in the exercise of ordinary care under the circumstances have obtained this knowledge.
We have held and still hold, that taking the evidence of the cashier and the testimony as a whole, the trial judge was not authorized to *Page 159 instruct the jury that in any view of it plaintiff was fixed with knowledge of the fraudulent character of the check sued on. The judge charged fully upon this phase of the case, and it was fully presented and carefully considered by this Court when the case was originally heard.
The petition to rehear is
Dismissed.
Mr. JUSTICE MANNING took part in the decision upon this petition and concurs with the majority opinion. Mr. Justice HOKE adheres to his concurrence in the former dissenting opinion of Mr. Justice CONNOR, as presenting his views.