Dissenting. — The inability of the members of this court to agree upon a decision in this case is due to a difference of opinion among us as to the degree of faith and credit which should be accorded to the verdict of a jury.
*353It is said in the majority opinion that “the evidence admitted on the trial was sufficient to show that McLaughlin Brothers’ title to said promissory note was defective.” In this portion of the opinion I fully concur, and will add that the evidence is amply sufficient to establish the truth of the allegations of the amended answer and that it is thereby shown that' neither Deimage nor Elfers signed the note, as it was agreed they should do as a condition precedent to its delivery; that the stallion was not a sixty per cent foal-getter; that he was of little or no value for breeding purposes; that McLaughlin Brothers did not maintain a stable at Spokane, Washington, during the years 1907 and 1908 where he might be exchanged for another stallion, and that the note was delivered to them and was by them negotiated and sold in violation of the conditions and agreements under which it was made and under circumstances which amounted to fraud in procuring and disposing of it.
The only material question of fact remaining in this case is: Did appellant purchase the note without notice of any of the foregoing facts and circumstances appertaining to its execution and delivery which would render the title thereto of the payee therein named defective?
The burden of proof was upon appellant to show that it did so purchase, for, since the title of McLaughlin Brothers was defective from the time their agent procured the respondents to execute and deliver the note, the provisions of sec. 3516, Rev. Codes, apply and make it necessary for it to produce proof, satisfactory to the jury, that at the time it purchased the instrument it had no notice of any defect in the title of the person negotiating it.
In an effort to meet this requirement of the law and to establish its good faith and lack of notice of the defects in the title of McLaughlin Brothers, appellant produced its president, Mr. F. P. Neal, as a witness, who testified that he acted for appellant and that William McLaughlin acted for McLaughlin Brothers in the transaction; that the note was given for the purchase price of a stallion; that he did not know, nor was he or any officer of appellant corporation told, *354that the payee had warranted the stallion in any way; that neither the appellant nor any of its officers had, at the time it received the note, any notice, knowledge or information of any other agreement made, or claimed to have been made, between McLaughlin Brothers and the makers of the note, or any of them, in connection with the transaction in which it was given, or any other agreement made between the parties at the time. The following question was propounded to this witness and 'the following answer given by him:
“Q. State if the plaintiff or any of its officers, at the time plaintiff purchased, took or received said note, or paid the consideration therefor, had any notice, knowledge or information that an agreement had been entered into, or was claimed to have been entered into with defendants, or with the makers of said notes, or any of them, by the said McLaughlin Bros., through one Emerson Mays, or otherwise, wherein the said McLaughlin Bros, agreed to hold each of the said defendants for only $400, the price of one share in a certain stallion, Endurant, for which the said notes were alleged to be given, if you know.
“A. No, neither the plaintiff nor any of its officers had any notice, knowledge or information of any alleged agreement, such as mentioned in this question. We never heard of Emerson Mays, and knew nothing about him or his relations to McLaughlin Bros.; neither the plaintiff nor its officers at any time knew or had known anything about any of the matters referred to in this question.”
Much of the testimony given by Mr. Neal in rebuttal is of the same general character and was the only evidence adduced tending to show that appellant purchased the promissory note in question without notice to it of the fraud perpetrated upon its makers, by the agent of McLaughlin Brothers, whereby it was procured. •
Appellant is a national banking corporation, and can only receive notice of defects in the title of the vendors to negotiable paper it buys by means of notice to or knowledge of its officers and agents. As such a corporation it has a board of directors, cashier and, probably, some other officers who, if *355they had knowledge of the fraud by means of which this note came into the possession of McLaughlin Brothers, would bind it with notice.
While Mr. Neal’s testimony may be said to establish that he had no knowledge of the circumstances attending the making of this note, it was, of course, impossible for him to know, of his own knowledge, that the officers and agents of the appellant corporation, other than himself, had no information which would amount to notice to it of the defects in McLaughlin Brothers’ title to the note.
It was the testimony of Mr. Neal, and his testimony alone (for there is no other evidence upon this point in the record), which has satisfied the minds of the majority of this court and prompted it to decide that appellant had no notice of the fraud. It was this same testimony which the jury found to be insufficient to satisfy the minds of its members upon the same point. There being a total lack of evidence, other than the statements of Mr. Neal, which, by the very nature of the matter under consideration, could not have been within his knowledge, that none of the officers or agents of appellant knew of the fraud which was perpetrated when the note was given, the jury found for the defendants, and, it seems to me, correctly so.
This court, speaking through Mr. Justice Budge, in the recent case of State v. Bouchard, 27 Ida. 500, 149 Pac. 464, said: “It is within the province of the court to say whether or not evidence is competent or admissible, but its weight and credibility are primarily for the jury. There is no more justification for the court to assume the functions of the jury than there is for the jury to undertake to assume the duties of the court.”
The Chief Justice and myself concurred in that opinion, and I still believe the portion of it above quoted to be a sound rule of law, well stated, and one that should be applied to a case of this kind with equal force as it was in the Bouchard case, where a citizen was charged with a crime and where this court did not see fit to disturb a verdict of conviction because of difference of opinion between its members and the mem*356bers of the jury as to the weight and sufficiency of the evidence.
This is not a case involving a conflict in the proof and in-' viting the application of that oft-repeated and frequently violated rule that “where there is a substantial conflict in the evidence and, taken as a whole, it is sufficient to sustain the verdict, a judgment based thereon will not be disturbed. ’ ’ In this case the jury found, as it was justified in finding, that there was a total lack of evidence, other than the testimony of Mr. Neal, that appellant was a holder of the promissory note in due course, and that his testimony was insufficient to prove that it had no notice, due to the knowledge of one or more of its officers or agents, of the defect in McLaughlin Brothers’ title. This situation makes applicable the well-known rule of law that “the jury is the exclusive judge of the facts and of the weight and sufficiency of the evidence. ’ ’
It appears to me that, by the foregoing decision, the members of the majority of this court have invaded the province of the jury in determining the weight and sufficiency of the evidence and have revised the judgment because the proof offered by appellant satisfied their minds, ignoring the circumstance that it was found to be insufficient, by the body of men charged by law with the duty of judging the facts, to satisfy theirs, and disregarding the law which provides that it is the minds of the jurors and not those of the members of this court which must be satisfied as to the facts of the case. I am, therefore, unable to concur.