delivered the opinion of the court, March 20th 1882.
The learned judge who tried this cause below was evidently of the impression that it came within the ruling of Steckel v. Bank, 12 Norris 376, and Ziegler v. The Bank, Ibid. 393. There is, however, a marked distinction between the cases. In those cited there was a positive assertion on the part of the bank officers that the certificates in question were the certificates of the bank, and this assertion was made under circumstances which rendered it at least probable the parties were misled by it. We therefore held there was a question of fraud which ought to have been submitted to the jury.
In the case in hand it is evident from the testimony of the plaintiff below that he knew he was getting the certificate of Blumer and Co. and not of the bank. In the first place he was distinctly told the bank would not pay interest, but that he could have a certificate bearing six per cent, interest. When it was handed him he looked at it and said, ‘ ‘ What is this % This is Wm. IT. Blumer & Co.,” to which the president of the bank replied, “ It is all the same thing ; wo own the bank ourselves, and you will get your money in the Pirst National Bank at any time you want it.” It further appeared that Mr. Blumer showed him the bank statement, and then qualified his remark as to the ownership by saying that his firm owned nearly all the bank. This last statement, while not literally true, was *127substantially so. It was in evidence that the firm of Wm. II. Blumer & Go. owned 1,560 shares of the 2,500 shares composing the capital of the bank.
There was no evidence that the plaintiff was told his certificate tvas the certificate of the bank. The statement of Blumer that “ it was all the same thing ” could not have misled him, for the reason that it was qualified and explained by the remark that they, the firm of Blumer & Co., owned nearly all the bank. The obvious inference from the remark is, not that the certificate was issued by the hank, hut that it was equally good. It is difficult to see anything in this interview that could have deceived a man of even ordinary intelligence. The plaintiff was a business man, accustomed to.large dealings with the bank, and therefore less liable to he deceived.
We fail to see any evidence of a contract with the bank. It was therefore error to submit this question to the jury.
Judgment reversed.