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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 415 IN BANC. The defendants assign as error the rulings of the court below denying their motions for directed verdicts and for judgments notwithstanding the verdicts. We will direct our attention to these assignments first as they apply to the Bank.
There is evidence of the following facts: In February, 1941, Edward N. Brown was the vice president and assistant cashier of the Harney County National Bank. The plaintiffs J.B. Fine and Ethel Fine are husband and wife, and for a number of years had maintained a joint commercial account with the Bank in which they carried substantial balances. In 1941 J.B. Fine and Brown were engaged in a joint enterprise — a personal, not a bank, transaction — involving the purchase, pasturing and sale of cattle. On February 11 they met at the Bank for the purpose of determining the balance of accounts between them and of effecting a settlement. After some discussion they agreed that the business should be settled by the payment by Brown to Fine of the sum of $7,650.00. Accordingly, Brown drew his personal check in that amount on his account at the bank payable to Fine, and delivered it to the latter, who immediately endorsed it and handed it back to Brown. Brown thereupon made out original and duplicate deposit tickets showing the deposit of the *Page 417 endorsed check in the bank, gave the duplicate to Fine, and pushed the original under one of the cashier's windows.
This occurred after banking hours about four-thirty in the afternoon, but no point is sought to be made of that circumstance.
Brown was an embezzler of the Bank's funds, and the check he gave was worthless. There is no evidence, however, that Fine knew of his misconduct or of any fact which should excite his suspicion about Brown's check. On August 6, 1942, after the arrival of a national bank examiner at the Bank to examine into its affairs, Brown committed suicide. The Corporation thereafter, as will more fully appear below, purchased certain assets of the Bank and undertook the liquidation of its affairs.
Sometime in March, 1941, Fine called at the Bank for a statement of his account and received what purported to be such a statement from Brown. This document, which is in evidence, is dated February 17, 1941. The first entry in the balance column shows a balance in the account of $28,573.35 as of January 13. A deposit entry is shown as of February 11 of $7,650.00, and the balance as of February 17 is $37,655.52. The uncontradicted evidence is that the deposit in controversy was never credited to the plaintiff's account on the books of the Bank; that Brown at no time in 1941 had sufficient funds on deposit in the Bank to cover the check; that it was never charged against his account; and that the false statement was prepared by Brown to deceive Fine.
On the ledger sheet of the Fine account kept by the Bank there appears a deposit entry as of February 28, 1941, in the amount of $7,000.00. There is in evidence *Page 418 a deposit slip in the name of J.B. Fine and purporting to show a deposit of $7,000.00 on February 28, 1941, apparently through the medium of a draft in that amount drawn on the First National Bank of Baker. There is no evidence, unless the writing on the deposit slip be considered such, that any such draft was ever issued or paid. It appears in that connection that on February 27 the balance standing to the Fine account on the books of the bank was $3,666.38, and that on February 28 a check for $10,000.00 drawn on the account by Fine, was presented to the bank for payment and was paid. It is a reasonable inference — perhaps the only reasonable one — that Brown made the false deposit entry of $7,000.00 on the Bank's ledger in order to prevent the creation of a large overdraft in the Fine account which would lead to the discovery of his manipulation of the books and his embezzlements.
A like fictitious deposit entry on May 3, 1941, in the amount of $749.98 appears on the ledger sheet. Immediately prior to this entry the balance in the account had fallen to $9.25, and on May 5 a check for $700.00, drawn on the account, was paid.
There is also in evidence another purported statement of the Fine account received by Fine from Brown and covering the period from February 21, 1941, to April 14, 1941. On the former date the balance shown by this statement is $30,015.54, and on the latter, $19,305.62. As has been seen, the statement delivered to Fine in March disclosed a balance on February 17 of $37,655.52; the two statements, considered together, thus indicating a reduction in the account between February 17 and February 21 of nearly $7,650.00. As to this Fine testified that he did not withdraw that amount nor any appreciable part of it during that period, and *Page 419 that he did not detect the shortage when looking over his statements. His testimony reveals implicit confidence in the integrity of the Bank and of Brown in particular, and that he paid scant attention to his bank statements and accompanying vouchers. He did not discover the irregularities in the account until after Brown's death.
It is shown by the testimony of John A. Rummel, the national bank examiner who examined the affairs of the institution, that the manipulation of the Fine account had commenced in 1938, and that it was necessary to go back to a time in that year in order to establish a starting point where the ledger sheets of the Bank and the statements issued to Fine were in balance. Rummel went over the account with Fine, and, as a result, "his statement on the bank's ledger was credited with something like $23,000.00 or $24,000.00 and settled satisfactorily between Mr. Fine and myself, and I believe to the Federal Deposit Insurance Corporation, with the exception of this $7,650.00." The witness testified that the corrections in the Fine account were all verified by duplicate deposit tickets which Fine had in his possession with the exception of a deposit ticket for the $7,650.00 item. Upon this point Fine testified that Brown was accustomed to making out his income tax returns for him. For this purpose he would furnish Brown with his bank statements, vouchers and deposit slips; these were found in the Bank by Rummel and returned to him, except the deposit slip for $7,650.00. Nor was Brown's check to Fine for that amount ever discovered.
We deem it unnecessary to determine whether the Bank is concluded by the fictitious deposit entries of $7,000.00 and $749.98 and subsequent withdrawals *Page 420 referred to in the foregoing statement. Under Williams v.Dorrier, 135 Pa. 445, 10 A. 1024, which involves similar facts, it would seem that the Bank would be held estopped to deny want of authority in Brown to place those credits to the depositor's account. We prefer, however, to place our decision upon another ground.
The general rule applicable to a banking transaction such as that with which we are here concerned is thus stated in 2 Morse on Banks and Banking (6th ed.) 1216, § 569:
"When a check is presented for deposit drawn on the depositary bank, the bank may refuse to pay it, or take it conditionally by express agreement, or by usage, if such a one exists, as in California; but otherwise, if it pays the money, or gives credit to the depositor, the transaction is closed between the bank and the depositor, unless the paper proves not to be genuine, or there is fraud on the part of the depositor. The giving of credit is practically and legally the same as paying the money to the depositor, and receiving the cash again on deposit. The intent of the parties must govern, and presenting a check on the bank, with a pass book in which the receiving teller notes the amount of the check, is sufficient indication of intent to deposit, and to receive as cash. So a credit on the deposit ticket is as significant an act of receiving the check as cash as is a credit on the pass book or the books of the bank."
To the same effect see 5 Mitchie, Banks and Banking (perm. ed.) 49, § 26; 7 Am. Jur., Banks, 327, § 457; Oddie v. National CityBank, 45 N.Y. 735, 6 Am. Rep. 160; Cohen v. First NationalBank, 22 Ariz. 394, 198 P. 122, 15 A.L.R. 701, with annotation at pp. 709 et seq.
"The fact that the transaction had not been entered on the books of the bank when the receiver *Page 421 took charge does not affect the situation. The depositor is not required to see that the deposit is entered on the bank's books or that the check is charged to the drawer." 6 Zollmann, Banks and Banking (perm. ed.) 197, § 3818.
There are cases where, under certain circumstances, such as evidence tending to show that a check was laid aside for examination until the closing of banking hours before it should be credited, or evidence of usage that checks were so held (seeNational Bank v. Burkhardt, 100 U.S. 686, 25 L.ed. 766), the question whether a check was received for deposit may become one of fact. But we take it that, in the absence of such circumstances or an express agreement that the check is taken conditionally, the question is one of law to be passed on by the court.
Defendants concede the general rule as above stated, but contend that it cannot be applied here because the check, which was the subject matter of the deposit, was Brown's personal check, drawn on his own bank, and given to Fine in payment of his personal obligation. It is not questioned, and it cannot be, that Brown, as assistant cashier and vice president of the Bank, was authorized to receive deposits, but it is asserted that when an officer of a bank delivers his personal check for the purpose of paying his personal debt the person taking the check does so at his own risk and without recourse against the bank, and that one who accepts the personal check of an officer of a bank in payment of a personal obligation and seeks to hold the bank thereon has the burden of proving that the officer had the necessary money on deposit to pay such check. In support of these propositions counsel cite nine cases, but upon an examination of them it will be seen that *Page 422 only two, Schwenker v. Parry, 204 Wis. 590, 236 N.W. 652, andColumbia Bank v. Morgan, 198 Wis. 476, 224 N.W. 707, are authority for the rule which defendants would have us adopt.
In the other cases the person dealing with the bank official was informed by the transaction itself that he was using bank funds to pay his personal obligations. In Hier v. Miller,68 Kan. 258, 75 P. 77, 63 L.R.A. 952; C.M. Condon Company StateBank v. Richardson, 117 Kan. 695, 232 P. 1070; and Greer v.Farmers National Bank of Sulphur, 174 Okla. 46, 51 P.2d 792, the bank officer's debt was attempted to be paid by the issuance of deposit tickets to the creditor. In First National Bank v.Rust, 257 Fed. 29 (CCA 5), Cert. denied, 250 U.S. 667,40 S. Ct. 13, 63 L.ed. 1197, a certificate of deposit was given. In Blissv. Live Stock National Bank of Omaha, 122 Neb. 668,241 N.W. 106, a draft drawn on another bank was used to pay part of the debt and the balance was charged to the account of the officers' own bank with the bank to whom they owed the money. In HollandBanking Company v. Republic National Bank, 328 Mo. 577,41 S.W.2d 815, a draft was drawn on another bank (though in this case the payment was held to be good under a statute). And in Stateex rel. Davis v. Farmers State Bank of Hadar, 111 Neb. 585,197 N.W. 386, three notes belonging to the bank were used to pay the individual notes of its cashier.
In none of the foregoing cases was a personal check of the officer of a bank in any way involved except in Greer v. FarmersNational Bank of Sulphur, supra, and the decision there, against the depositors who were claiming credit for the amount entered on a deposit ticket, was not based on the fact that such a check *Page 423 had been given, but on the following rule which the court quoted from 3 R.C.L. 531:
"If the cashier of a bank, without actual authority so to do, undertakes to pay his individual debts by entering the amount thereof as a credit upon the pass book of his creditor, who keeps an account with the bank, the bank may recover of his creditor the amount of money it may pay out upon checks drawn upon the faith of the unauthorized pass book entries."
The court moreover expressly recognized that if, as some of the evidence showed, the personal check of the officer of the bank had been issued in payment of the debt, the case for the claimants would have been stronger.
The basis of these decisions and of numerous others with similar facts which might be cited is that the person accepting the bank obligation or memorandum of credit is placed on notice that the officer is using bank funds for his private ends. Thus it is said in 4 Zollmann, Banks and Banking, 286, § 2264, in speaking of bank drafts given by an officer of the bank to pay his personal obligation:
"One who accepts such a draft is placed on notice that the cashier is discharging his personal obligation with the funds of the bank and will not be treated as an innocent holder, but may be required to account for the proceeds. Such a draft imparts notice of its infirmities on its very face. The recipient must at his peril determine whether express power exists for such a purpose. This doctrine finds its basis upon that fundamental maxim that `a man cannot serve two masters.'"
The author continues:
"The same legal consequences follow where a certificate of deposit instead of a draft is issued, or *Page 424 a note of the bank is indorsed to the creditor of the officer himself, or where the officer gives his debtor a deposit slip, or enters the amount of the debt in the creditor's passbook, or merely promises to deposit the amount for him, and allows him to check against such fictitious credit. The act of the officer places the customer on inquiry, and entitles the bank to recover from him the money thus paid out."
But the text then proceeds:
"A personal check by the officer, of course, is on a different plane. An officer clearly may have a checking account in his own bank, and the fact that he issues checks against it does not impart notice that any fraud is involved, even though his account is overdrawn or nonexistent."
Again it is said, op. cit., 277, § 2262:
"Since it is a general practice of officers and employees of a bank to patronize it with their deposits and checking accounts, a payee, in accepting checks drawn by such officer or agents, is not charged with any notice that they are to be paid out of the funds of the bank or that there is any lack of authority in the drawer to issue them."
The precise question here presented was decided adversely to defendants' contention in Pope v. Ramsey County State Bank,137 Minn. 46, 162 N.W. 1051. Lamb, the president of the First State Bank of McIntosh, S.D., gave his personal checks drawn on his own bank in payment of his individual notes to the defendant bank. The checks were paid in the usual manner by an adjustment of accounts with the First National Bank of McIntosh, Lamb acting for his bank in the transaction. He did not have sufficient funds on deposit to cover the checks, which were paid with money of the bank. The defendant bank, however, was without knowledge of this fact. It was assumed for the purpose of the decision *Page 425 that the defendant bank, through its collecting agents, was concluded by the knowledge or notice of its agents that the president of the First State Bank attended to the clearing transactions through which the checks were paid.
In an action brought by the receiver of the First State Bank to recover the proceeds of the checks from the defendant bank a judgment for the plaintiff, based upon a directed verdict, was reversed. The court said:
"Plaintiff invokes the salutary doctrine that one who receives an obligation of a corporation from the officer or agent who issued it in payment of the latter's personal debt is charged with notice of want of authority in the officer or agent to execute the obligation. The presumption is against the right or authority of an officer or agent of a corporation to execute its obligation for his own use. (Citing authorities.) All of these cases, and others to which our attention has been directed, relate to obligations of corporations made out by the officer or agent who used them for his personal purposes to the knowledge of those who received them."
The court then pointed out that the personal checks of the president of the First State Bank did not purport to be the obligations of that bank, whereas a cashier's check, a certified check, or a draft are the absolute obligations of the bank issuing them. It was assumed — and justifiably so — that it is a general practice of the officers of a bank to keep checking accounts in their own bank.
"Therefore defendant, in accepting these checks of Lamb, could not be charged with any notice that they were to be paid out of the bank funds, or that there was any lack of authority in the drawer to issue them. * * *"It will not be questioned, we believe, that one who receives from the president of the Merchants' *Page 426 National Bank in St. Paul a check, drawn on that bank, in payment of the personal note of such president, and obtains the money upon presentation to the paying teller of the bank, cannot thereafter be called upon to refund that money by mere proof that the president's account was overdrawn. Such a transaction would seem to be as legitimate and safe to the person so receiving the money on the check as if he had been paid in currency instead of by check. Here defendant in collecting these checks pursued the ordinary legitimate business course. So did the First National Bank of McIntosh in presenting them for payment and receiving the amount. There was nothing to advise that bank that Lamb's account was overdrawn, or to suggest such a state of affairs. The ones in charge of the State Bank of McIntosh were attending to their duties in the customary way. In the cases hereinbefore cited notice of the corporation's ownership of the funds came from the instrument itself. In the absence of such notice there must be proof that the one who receives the money knows or has reason to believe the same to be a misappropriation. There was no such proof here. The fact that to the knowledge of the First National Bank of McIntosh the State Bank had only Mr. Lamb, his wife, and a bookkeeper in charge of its business, and that Mr. Lamb served both as paying and receiving teller, and adjusted clearings, does not signify."
Counsel for the defendants endeavor to distinguish this case by the statement that one of the principal facts relied on by the court in reaching its decision was that Lamb, some time after he had paid his own checks out of bank funds, made a deposit sufficient in amount to cover all funds which had been withdrawn. In our opinion this is a misconception of the scope and effect of the decision. It is true that at the end of the opinion the court added a paragraph in which it was said that there was no justice or equity in plaintiff's favor in view of the subsequent deposit. But the case was decided *Page 427 upon the grounds which we have indicated, independently of this circumstance. That this is so is emphasized by a specially concurring opinion of one of the judges, who took issue with the conclusions of the court which we have quoted, but thought that the fact that the moneys had afterwards been deposited by the bank president justified the result.
Aside from the two Wisconsin cases above cited there are only two other jurisdictions, so far as we are advised, in which the question has been passed upon. In Pemiscot County Bank v. TowerGrove Bank of St. Louis, 204 Mo. App. 441, 461, 223 S.W. 115, the court adopted a view in harmony with that in Pope v. RamseyCounty State Bank, supra. First National Bank of High Bridge,N.J. v. Hudson, 166 A.D. 51, 151 N.Y.S. 595, 598, seems to be to the same effect. See 4 Zollmann, op. cit., 288, note 59.
The Wisconsin decisions refuse to recognize the distinction between an obligation of the bank, given in payment of a bank officer's individual debt, and a personal check on his own bank issued for a like purpose by a bank officer and thereafter cashed by him, and hold "on grounds of sound public policy" that a person takes such a check at his peril and without recourse against the bank where there are no funds on deposit to meet it.Schwenker v. Parry, supra, 204 Wis. 598, 599. We are unable to accept the reasoning of the Wisconsin court nor do we find any justification in public policy for the rule which it has adopted. To us the difference between the position of one receiving from the agent of a corporation in payment of the agent's debt an obligation of the corporation, and that of one receiving the agent's personal check drawn on the bank of which he is an officer or employee seems to be obvious and to require nothing further than its statement. In the one *Page 428 case the recipient of the bank's obligation, being advised by that very fact that the bank officer is using the moneys of his principal for his private purposes and not for corporate purposes — that, as the court said in Hier v. Miller, supra, he is trying to serve two masters — has a duty to ascertain whether so unusual an authority has been conferred upon him. In the other case, which is an ordinary business transaction, no such duty arises. As stated in 4 Mitchie, op. cit., 285 § 117, in the course of a discussion of this subject:
"A transaction out of the usual course and showing the antagonistic relations of the bank officer is sufficient to put a third person on notice."
In our opinion, the transaction here in question is not of that kind.
The defendant Bank, therefore, was not entitled to a directed verdict; while, on the other hand, under the facts in evidence and the rule of law applicable thereto which we deem correct, the plaintiffs were entitled to recover as a matter of law. The proof of those facts was given by the plaintiff J.B. Fine. His testimony is not impeached and his credibility not called in question. Indeed, counsel for the defendants in his argument to the jury said:
"I have no desire, certainly I have no intention to say, I have no feeling that Mr. Fine is not a fine, honest man. I think he has told the truth just as near as human recollection will permit, of the facts. I haven't any reason to doubt that when he said this happened at that particular time, that it did happen."
Notwithstanding this concession by counsel, the court submitted to the jury for their determination the question whether the transaction, as testified to by Fine, *Page 429 had occurred, and their verdict for the plaintiffs conclusively establishes the fact. And, as no claim or suggestion is made that Fine did not accept Brown's check in good faith and without actual notice or knowledge of any fact which would lead him to suspect that the check was not good, the ultimate question here is, in any event, one of law, and must be, as stated, resolved in favor of the plaintiffs.
We come now to a consideration of the ruling denying the motion of the defendant Corporation for a directed verdict.
Upon the question whether the Corporation assumed payment of the deposit liability to the plaintiffs there is evidence of the following facts:
Under date of September 12, 1942, the Corporation executed an instrument, denominated "Power of Attorney", which recites that the Corporation previously "designated Frank Strain Liquidator of the assets purchased by the Corporation under its purchase agreement dated the twenty-ninth day of August, 1942, with The Harney County National Bank of Burns", and, among other things, authorized the said Frank Strain "to sign, seal and deliver as the act and deed of said Corporation, any instrument in writing, and to do every other thing necessary and proper for the collection and recovery by this Corporation of any and all sums, moneys and properties of every kind and nature whatsoever for and on behalf of this Corporation".
While so acting as liquidator Strain prepared a document in which he analyzed the plaintiffs' claim and recommended that it be paid. This document he forwarded to the Chicago office of the Corporation about May 25, 1943.
Under date of July 28, 1943, Strain executed as "Agent for Federal Deposit Insurance Corporation" a *Page 430 duly verified proof of amended or supplemental claim in the matter of the estate of Edward N. Brown, deceased, which claim was presented to the executors of that estate, was by them rejected, and was filed in the Circuit Court of the State of Oregon for Harney County on September 27, 1943. The claim recites:
"This claim is for losses suffered by the Harney County National Bank of Burns, Oregon, by reason of the confessed dishonesty of the decedent while he was employed as an officer of the bank and in the manner set forth in the attached schedules referred to and described as follows:"Schedule 1 — Additional Deposit Liabilities set up by Federal Deposit Insurance Corporation claim agents subsequent to December 31, 1942, in the amount of $17,143.61."
Schedule 1 lists a deposit liability to J.B. Fine in the amount of $7,610.53.
The evidence as to Strain's acts was objected to on the ground that he had no authority to bind the Corporation by the recommendation in question or to allow claims on its behalf. Strain did not testify as to the extent of his authority, but J.F. Angel, senior assistant supervising liquidator of the Corporation, who was called as a witness by the defendants, testified on direct examination that ordinarily the liquidator has nothing to do with deposit claims or with deposit liabilities assumed by the Corporation. He was asked:
"In this particular case was Mr. Strain authorized by you or by the Corporation to fix or determine or allow any claims on deposit liability?"
and answered:
"In this particular instance my recollection is that Mr. Strain was requested to submit certain information from the records."*Page 431
He testified that the board of directors is authorized to, and does, determine the action of the Corporation with regard to any specific deposit liability or alleged deposit liability, and in practice that power may be delegated to the chief of the division of liquidation.
"Q Now I will ask you whether or not a liquidator has any authority from the corporation to determine and attest or fix or allow any claim of deposit liability ?"
"A No."
Referring to the document containing Strain's recommendation with respect to the plaintiffs' claim the witness testified:
"Q I will ask you whether or not the statement contained particularly under the head of `Comments' there — to whom those statements are made, to whom a report like that is made?"A This report was submitted to the Division of Liquidation of the Federal Deposit Insurance Corporation.
"Q By whom then is that considered and finally passed on as to whether or not the recommendation will be followed, or whether it is well founded?
"A It is finally passed on by the Chief of the division of liquidation.
"Q And until such report is finally passed on and the recommendation followed is any action ever taken by the Corporation?
"A No.
"Q Is that anything more than the recommendation by a liquidator to his superior as to what should be done in the way in which the corporation's business is and has been done?*Page 432"A It is no more than his recommendation, I would say.
"Q Does a liquidator have any power or authority or is he granted any power or authority by the corporation to allow any kind of claim?
"A Not unless the claim has been approved by his superiors."
On cross-examination the witness testified as follows:
"Q I will ask you to read the verification on the proof of claim filed in the estate of Edward N. Brown filed on the 15th day of April, 1943. You may read it. Just read it to yourself, don't read it to the jury. You have testified as to the powers and duties of a liquidator. Did the individual who executed that affidavit have power to execute that?"A He had power provided he was directed to do it, that would be my conclusion.
"Q You don't know whether he was directed to file this proof of claim?
"A I don't know. I might assume that he was directed to do it.
"Q That would not be in the usual course of his duties?
"A That would be unusual.
"Q The filing of a proof of claim would be unusual?
"A That might be unusual yes. He could do it as an agent of the corporation if he were directed to do it.*Page 433"Q But without direction from the corporation he would have no authority; is that correct?
"A I wouldn't say whether that is correct or not, but what his power of attorney covers.
"Q You were quite familiar on your direct examination with all of the duties and rights of a liquidator. You are the Senior Assistant Supervising Liquidator. You testified directly as to his powers and duties. Do you or do you not know whether he had authority in the line of his duties as a liquidator from the Federal Deposit Insurance Corporation to sign an instrument of this character?
"A If he didn't have authority under what was first given him when he came out here, he was subsequently given that authority, I might assume."Q You would assume that he was given authority to file proof of claim in the Edward N. Brown estate?
"A Yes.
"Q Then it would be in the usual course of his business and within his powers, is that correct?
"A Yes in his powers.
"Q And in the line of his duties as liquidator of this particular office, is that correct?
"A Yes."
While it is true, as contended by counsel for the Corporation, that an opinion of an agent, based upon past occurrences such as that expressed by Strain in his recommendation relative to the plaintiffs' claim, does not bind his principal (Briggs v. John Yeon Co., 168 Or. 239, 254,122 P.2d 444, yet that rule can have no application where the opinion is communicated to the principal who thereafter acts upon it.
We think that the evidence objected to was properly admitted and that, under the record as made, it established a primafacie case of assumption by the Corporation of the deposit liability in question. While it may not be said that the power of attorney in itself authorized the liquidator to determine the merits of a disputed claim against the Corporation, we think that from the evidence of the witness Angel it could be determined as a fact that Strain was authorized to file the claim against the Brown estate after having submitted his recommendation to the Corporation. Angel testified that he would assume that the action taken was "within his powers", and, under his testimony, viewed in its entirety, we see no reason why the jury might not have made the like assumption. *Page 434
If this be so, then the inference would be warranted that the Corporation had assumed the Bank's deposit liability to the plaintiffs. The proof of claim against the Brown estate was "for losses suffered by the Harney County National Bank of Burns, Oregon, by reason of the confessed dishonesty of the decedent", and it would not be unreasonable to infer that the assertion of that claim was based upon such assumption.
We conclude, therefore, that there was some competent evidence introduced to support the allegations of the complaint against the Corporation, and its motion for a directed verdict was properly denied.
The next assignment of error to be considered is based upon an exception taken by the defendant to an instruction given by the court. The facts leading up to the giving of this instruction need first to be recited.
On September 29, 1943, the plaintiffs moved the court "for an order requiring the Federal Deposit Insurance Corporation to furnish plaintiffs a copy of the agreement entered into between the Federal Deposit Insurance Corporation and the Harney County National Bank relating to the assumption of the liabilities of the Harney County National Bank by the Federal Deposit Insurance Corporation", and on the same day the court made an order in writing directing "that the defendant Federal Deposit Insurance Corporation furnish unto plaintiffs a copy of all agreements pertaining to the assumption of the liabilities of the defendant Harney County National Bank by the defendant Federal Deposit Insurance Corporation on or before the 5th day of October, 1943." This order was served on Mr. C.B. McConnell, attorney for the defendant Corporation, on September 30, 1943.
On the day of the trial, October 13, 1943, the Corporation, through its attorney, Mr. Robert F. Maguire, *Page 435 who appears to have come into the case shortly prior to that date, produced in court and presented for the inspection of counsel for plaintiffs a certain contract between the Bank and the Corporation, and made certain representations to the court tending to excuse the Corporation's failure to comply with the court's order within the time therein specified. Counsel for the plaintiffs objected to the tender of the document because it came too late, and the court, after listening to discussion by counsel, ruled that the defendant Corporation had been guilty of laches and neglect in its failure to produce the document as ordered.
Upon the trial the court sustained plaintiffs' objection to the admission in evidence of such document when offered by the defendant Corporation, and further sustained plaintiffs' objection to the admission in evidence of another contract between the Bank and The United States National Bank of Portland by which the latter assumed the liabilities of the former. In submitting the case to the jury the court gave the following instruction:
"In this connection however I instruct you that by reason of the failure of the defendant Federal Deposit Insurance Corporation to produce certain documents with relation to liability, that you are to presume the allegation of Paragraph 5 of the Complaint to be true: That is, that the Federal Deposit Insurance Corporation assumed all of the liabilities of the Harney County National Bank, and no proof is to be required for the establishment of that allegation."
This, of course, taken with the other instructions, was a direction to the jury to find against the Corporation if the liability of the Bank should be established. *Page 436
The statute under which the trial judge purported to act is § 10-401, O.C.L.A., and reads:
"The court or judge thereof, while an action or suit is pending, may order either party to give the other, within a specified time, an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence or matters relating to the merits of the action or suit, or the defense therein. If obedience to the order be neglected or refused, the court may exclude the book, document, or paper from being given in evidence, or if wanted as evidence by the party applying therefor, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party so neglecting or refusing as for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, documents, or papers, when he is examined as a witness."
Nothing in these provisions authorized the court's ruling in the circumstances of this case. Aside from punishment for contempt, the statute provides two penalties for neglect or refusal to obey the order for inspection. One is to exclude the document from being given in evidence, and the other is a direction by the court to the jury to presume the document to be such as the party applying for it alleges it to be, if such document is "wanted as evidence by the party applyingtherefor". Unless, therefore, it affirmatively appears in the record that plaintiffs wanted the document as evidence the instruction went beyond the power conferred on the court. There is no such showing. A request for an inspection or copy of a document is not tantamount to a request for its use as evidence, and in this case, when the contract was produced prior to the commencement of the trial, counsel for plaintiffs, so far from wanting it as evidence, refused to have anything *Page 437 to do with it and on the trial objected to its admission when offered by the defendant Corporation. It would be an anomalous situation indeed if a party were permitted to object to the admission in evidence of a document in one breath and in the next demand that the jury be instructed that the document is what he alleges it to be because he wanted it as evidence. The anomaly is heightened when, as will be shown to be the case here, it appears from an inspection of the document that its meaning and intent are the antithesis of the instruction. The provisions in question for penalizing the negligent or recalcitrant party are not cumulative but in the alternative, and their obvious intent is that, where the order is not complied with and the document is not made available to the party applying for it and desiring to use it as evidence, then and then only is the court authorized to give such an instruction as was given in this case.
The court is authorized by the statute to direct the jury to presume the book, document or paper to be such as "the party applying" for it "alleges it to be." In this case the only representation as to the character of the agreement is found in the motion for an order of inspection. The complaint itself contains no reference to any such document. In the motion it is referred to as an agreement "relating to the assumption of the liabilities of the Harney County National Bank by the Federal Deposit Insurance Corporation", and it is stated that it "contains evidence or matter relating to the merits of this action". The motion is subscribed by the attorneys for the plaintiffs. It is not sworn to. It is the party applying for the document, not his attorney, who is required to allege the character of the document before the instruction is authorized, and the allegation, we think, must be under oath. "The statute does not *Page 438 expressly provide that it is to be sworn to, nor even that it must be in writing, although the word `allegation' from the analogy of other judicial proceedings points to that formality":People v. Wyatt, 186 N.Y. 383, 389, 79 N.E. 330, 10 L.R.A. (N.S.) 159, 9 Ann. Cas. 972. In Nebraska there is a statute almost identical with ours which provides that, if the book, paper or document is "wanted in evidence by the party applying for it, (the court) may direct the jury to presume it to be such as the party by affidavit alleges it to be." In Sallander v.Prairie Life Insurance Co., 110 Neb. 332, 193 N.W. 737, it was held, as stated in the syllabus by the court, that under this statute "the proper practice is for the party desiring to use the book, paper or document in evidence to offer an affidavit setting forth the contents of such book, paper or document. It then becomes the duty of the court to instruct the jury to presume that the contents of the book, paper or document is such as the affidavit alleges it to be." We hold that under our statute, before an instruction of the kind in question may be given, the party applying for the book, paper or document must allege its character in writing under oath. An unsworn motion, subscribed by the party's attorneys, does not, of course, fulfill that requirement, and, even though it could be said that it did, the recitals in the motion under consideration would not support the instruction given by the court that the jury must presume "that the Federal Deposit Insurance Corporation assumed all of the liabilities of the Harney County National Bank". There is no such allegation in the motion or anywhere else in the record.
The giving of the instruction complained of was reversible error.
Since the case must be remanded for a new trial as *Page 439 to the liability of the Corporation, we deem it unnecessary to inquire whether the court abused its discretion in refusing to accept the excuse offered by the Corporation for its failure to comply strictly with the terms of the court's order and in excluding from evidence, for that reason, the contract between the Corporation and the Bank. The question in that form cannot arise again, and, since the agreement is of the highest relevancy, it should be admitted if offered upon another trial. It may be observed in passing, however, that the ultimate end for which courts are constituted is to administer justice through the ascertainment of truth, and that judicial rulings which shut out the truth are not lightly to be pronounced. There is much to be said for the view expressed by the court in a similar case "that the penalty enforced in this case should be resorted to only where there is a clear and deliberate attempt to impede justice or to suppress evidence": Davidoff v. Kaplan, 209 A.D. 592,204 N.Y.S. 543.
A brief consideration of the contract between the Bank and the Corporation and of another contract executed at the same time by the Bank and The United States National Bank of Portland will make it apparent that the case, as tried and submitted to the jury, ignored the realities so far as the question of the Corporation's liability was concerned. For these documents show that while The United States National Bank assumed the deposit liabilities of the defendant Bank, the Corporation did nothing of the kind — at least it did not do so in the sense that it made itself liable to the plaintiffs or any other depositor.
The contract between the Corporation and the Bank was entered into under date of August 29, 1942, pursuant to authority granted the Corporation by Subsection (n) (4) of § 264, Title 12, U.S.C. which provides *Page 440 that the Corporation may "make loans secured in whole or in part by assets of an open or closed insured bank, which loans may be in subordination to the rights of depositors and other creditors, or the Corporation may purchase any such assets or may guarantee any other insured bank against loss by reason of its assuming the liabilities and purchasing the assets of an open or closed insured bank." It recites that the Corporation has determined to purchase all of the assets of the Bank not purchased by The United States National Bank of Portland. The property sold includes "any claims against its (the Bank's) directors, officers or employees or their sureties arising out of any act of any such persons in respect to the Bank or its property or arising out of the non-performance or manner of performance of their duties * * *" It is recited that the agreed value of the assets acquired by The United States National Bank, together with $906,856.47 of what is called the Initial Cash Purchase Price is intended to equal but not exceed the aggregate amount of the liabilities of the Bank to its depositors as shown on an exhibit attached to the contract. But, if the liabilities should be less than that amount, the Bank authorizes The United States National Bank to pay over the difference to the Corporation, such payment to constitute a part of the property sold by the Bank to the Corporation. The Initial Cash Purchase Price consists of (a) $906,856.47 in cash plus (b) "the amount of the liability or liabilities, if any, of the Bank to any depositor or depositors for any reason not included and listed in Schedule `A' hereto, provided that the Corporation alone and in its sole and absolute discretion shall determine, and such determination by it shall be final, the amount of the liability or liabilities, if any, and the identity of the depositor or depositors of *Page 441 the Bank, if any, not so included and listed in said Schedule `A'." In addition to the Initial Cash Purchase Price the Corporation agrees to pay a Further Sum, which, however, is not pertinent to the present inquiry. The contract contains the following paragraph:
"Such contract shall inure solely to the benefit of the Corporation, its legal successors and assigns, and shall be binding upon and inure to the benefit of the Bank, its legal successors and assigns, but shall not be assignable by the bank as a whole or in part without the written consent of the Corporation, and shall not be construed to inure to the benefit of any parties other than the parties hereto."
The contract between The United States National Bank and the defendant Bank contains a recital to the effect that the Corporation has made a commitment to purchase certain assets in order to provide the defendant Bank with sufficient funds to make possible the transfer of certain of its assets to The United States National Bank in consideration of the assumption of its liabilities by the latter to the extent and in the manner thereinafter set forth. In consideration of the transfer of such assets The United States National Bank assumed and agreed to pay liabilities of the defendant Bank aggregating $1,267,449.12. The United States National Bank further agreed to pay, but only upon written certification addressed by the Corporation to the defendant Bank, any deposit liabilities of the defendant Bank not included in a schedule attached to the contract, provided that such liability should not arise until the defendant Bank shall transfer and pay over to The United States National Bank cash or property in an amount equal to such additional liabilities. There is an express provision granting to depositors *Page 442 and creditors the right to enforce the provisions of the contract against The United States National Bank. It is also provided that in the event the amount actually due to the depositors and creditors named in the schedule of liabilities is less than the amount stated in said schedule The United States National Bank agrees to pay the amount of such excess to the Corporation forthwith upon discovery thereof.
In addition to the contracts counsel for the Corporation also offered in evidence a letter dated August 29, 1942, addressed to the Corporation by the defendant Bank and reading as follows:
"The Harney County National Bank has assigned to The United States National Bank of Portland the amount due from your corporation for the purchase of certain assets of this bank in accordance with the contract of this date between this bank and your corporation."Accordingly, you are requested to disburse the sum of $906,856.47 representing such purchase price to The United States National Bank of Portland, Portland, Oregon."
The arrangement portrayed by these contracts and the quoted letter was one under which The United States National Bank assumed and agreed to pay all the deposit liabilities of the defendant Bank in consideration of the transfer to the former of certain assets of the latter together with the money which the Corporation agreed to pay for the remaining assets, all of which was intended to equal the total amount of the then ascertained deposit liabilities. If any deposit liabilities should subsequently be asserted and determined by the Corporation to be such the amount thereof would be paid by the Corporation to the Bank as part of the purchase price of the assets sold to the Corporation. *Page 443 The Corporation expressly stipulated, as it had a right to do, against liability to any third party such as the plaintiffs assert. And, among the assets which it purchased from the defendant Bank were claims against the officers and employees thereof based on their misconduct, a provision which would adequately explain the act of the Corporation in filing a claim against the Brown estate for the amount of the deposit liability to the plaintiffs.
From the foregoing review of the contents of the three documents, the prejudice to the defendant Corporation resulting from the court's refusal to admit them in evidence is obvious. Without the light which they shed upon the case, the evidence that the Corporation filed a claim against the Brown estate for the amount of the deposit liability to the plaintiffs was sufficient, as we have held, to warrant an inference that the Corporation had assumed that liability. But, were the contracts and letter in evidence, an entirely different case would be presented. We, of course, have no means of knowing what character of evidence may be produced on another trial and, therefore, express no opinion as to what the ultimate outcome of the case as to the defendant Corporation may be. Neither do we intimate an opinion as to whether, in the event that the plaintiffs cannot recover in the present case, they may or may not have a remedy in some other form of proceeding by reason of the agreements in question.
In view of our disposition of the controlling questions in the case, we find it unnecessary to discuss any of the remaining assignments of error, except one, which relates to a matter of pleading.
Paragraph V of the complaint alleged in effect that the defendant Corporation took over all the assets of *Page 444 the defendant Bank and assumed all of its liabilities, including its liability to the plaintiffs. By its answer to this paragraph the defendant "denies that it assumed all of the liabilities of the Harney County National Bank of Burns, Oregon, and denies that it assumed liability to pay the plaintiff's the sum of $7,650.00, or any other sum whatsoever." On the day of the trial, but before the commencement thereof, counsel for the defendant Corporation tendered to the court, and asked leave to file, an amended answer in which it would have added to the denials above quoted the following:
"Further denies that it took over all or any of the assets of said bank, and denies that it assumed all or any of its liabilities and denies that it assumed any liability of said bank to plaintiff, and particularly denies that it assumed any liability of said bank to plaintiffs by reason of said alleged deposit of $7650.00, or any part thereof."
The court denied the application, and in its charge to the jury instructed that the denials we have quoted from the answer on which the case was tried were negatives pregnant, which, in effect, admitted that the Corporation took over "any and every portion of the assets of the bank less than the total liabilities with the exception of the liability to the plaintiffs."
We will not decide whether denial of the application to amend constituted an abuse of discretion. The rule forbidding a negative pregnant is recognized in this state (Minter v.Minter, 80 Or. 369, 157 P. 157), though we think that it "is greatly affected by the liberal rules of construction and amendment of pleadings that prevail generally under the codes", 41 Am. Jur., Pleading, 429, § 196. It is asserted in the plaintiffs' brief in one breath that denial of the application *Page 445 to amend did not prejudice the defendant Corporation, but in the next breath it is argued that the supposed admission of the answer that the Corporation assumed the Bank's liabilities, warranted the court in excluding from the evidence the contracts and letter above discussed which would have demonstrated that those admissions were contrary to the fact. The most that can be said for the court's ruling is that plaintiffs' counsel might have been misled by the form of the pleading and that the application to amend came too late. That will not be the case on another trial, and if the application should be renewed, it should be granted.
The judgment is affirmed as to the defendant Bank, and as to the defendant Corporation it is reversed and the cause remanded for further proceedings in conformity to this opinion. *Page 446