Dissenting. — I am unable to concur. The only defense to the note well pleaded was want of consideration. The court found that the note was given for a good consideration. Such a finding is held to be a finding of an ultimate fact and not a conclusion of law. (Utah Nat. Bank v. Nelson, 38 Utah, 169, 111 Pac. 907.) There is substantial evidence to support this finding. There was testimony by at least two witnesses on behalf of respondent to the effect that the note sued upon was given in exchange for or payment of the Shearer note. In addition to this the makers of this note all testified that they gave it in order that it might be placed among the loans and discounts of the Payette National Bank for the purpose of deceiving the bank examiner. The final word upon this point is the testimony of Ingard:
“Q. What was the motive for signing the note?
“A. To help the Payette Nat. Bank and in order to charge off the Shearer note which was long past due and would not pass the bank examiner any longer.”
It is uniformly held that after the insolvency of a bank the maker of a promissory note, given as “live” paper to deceive the bank examiner, is estopped from showing want *302of consideration. (Hurd v. Kelley, 78 N. Y. 588, 34 Am. Rep. 567; Moore v. Kildall, 111 Wash. 504, 191 Pac. 394; Lyons v. Benney, 230 Pa. 117, 79 Atl. 250, 34 L. R. A., N. S., 105, and note; Galena Nat. Bank v. Ripley, 55 Wash. 615, 104 Pac. 807, 26 L. R. A., N. S., 993, and note.)
It would seem that the estoppel should he held to apply in actions brought by the bank as well as in those brought by a receiver of an insolvent bank. Presumably such notes are not given in contemplation of the insolvency of the bank. Creditors are not deceived, for they do not have access to the note case of a bank. The deception is practiced against the bank examiner, who acts on behalf of the government in the interest of the stockholders as well as the creditors.
The following observation of Ross, J., in the case of Pauly v. O’Brien, 69 Fed. 460, is applicable:
“If, however, this was not really the case, but that, in • truth, the transaction was a mere trick to make it appear to the government and to the creditors and stockholders of the bank that it had a valuable note when in fact it did not have one, the result must be the same, for, when parties employ legal instruments of an obligatory character for fraudulent' and deceitful purposes, it is sound reason, as well as pure justice, to leave him bound who has bound himself.”
In the case of Third Nat. Bank of St. Louis v. Reichert, 101 Mo. App. 242, 73 S. W. 893, the following quotation, although not necessary to the decision, is worthy of note:
“According to the testimony relied on by the appellant, he executed the note in question for the distinct purpose of imposing on any national bank examiner who might investigate the condition of the Chemical Bank. Such examinations are made for the good of stockholders and the public generally. They are the means prescribed by law to keep national banks in sound condition, prevent losses by improvident or dishonest managers to stockholders and customers, maintain public confidence in those institutions, and á stable condition of the country’s finances. It is a serious question whether appellant is not estopped to interpose the defense *303of lack of consideration for a note given in the circumstances and for the purpose he says he gave this one. Granting that it was acquired by the respondent after maturity, as it was executed by the appellant to deceive the officer whose duty it was to scrutinize the bank’s assets, appellant occupies a weak position on which to withstand the demand of the respondent, who was innocent of actual-knowledge of the facts, and would fall a victim to a scheme contrived by other persons to evade the law. Makers of commercial paper who acted from similar bad motives have been held estopped to defend on the ground of want of consideration. (Mead v. Nat. Bank (Sup.), 34 N. Y. Supp. 1054; Winton v. Freeman, 102 Pa. 366; Longmire v. Fain, 89 Tenn. 393, 18 S. W. 70; Howard v. Palmer, 64 Me. 86; Leggett v. Goodrich, 20 La. Ann. 165, 96 Am. Dec. 388.) The rule is probably universal that a person who engages in a fraudulent transaction will be left without relief from a hurtful consequence which may befall him.”
I think the judgment should be affirmed.
Dunn, J., concurs in the dissenting opinion.