(dissenting). I am unable to concur in the majority opinion for the reason, as it seems to me, it is in violation of the well-established elementary rule that a verdict based on a substantial conflict in the evidence will not be disturbed on appeal. One of the vital, substantial issues in this case was whether or not respondent or appellant was the principal in a certain business transaction relating to a trade involving real estate and personal property. Respondent, in substance, testified that he was not the real principal in such transaction, that he was merefy an agent, or a sort of “go-between,” for appellant; that appellant was, in fact, the real party to the trade, but that the transaction, by mutual agreement between respondent and appellant’s officers, was so-carried out as to-make it appear on its face that respondent was the real party, for the reason that appellant, being a bank, and using the funds of the bank, did not desire it to appear that it was, in fact, transacting such deal; that the notes and indebtedness appearing to have been made by respondent as a part of said trade were shams for the purpose of enabling the officers of said bank to make it appear on the books of said bank that respondent was the real party. In opposition to this evidence of respondent, appellant offered in evidence the letters of respondent, wherein respondent mentioned the notes and indebtedness as his own, and which letters on the face of them were apparently in direct conflict with his oral testimony. There is nothing apparent in these letters that would indicate that the notes or the indebtedness were shams. The officers of the bank also testified that respondent was the real party to the transaction, and that the money furnished in the deal as represented by the notes was furnished to respondent to enable *468him to carry out'the transaction on liis own behalf. It also appears from the evidence that the fruits of the trade — a house and a lot in Nebraska and an automobile — were at first taken in the name of respondent, and that afterwards respondent, by deed and ■bill of sale, transferred the title to appellant. Appellant contends' that this deed and bill of sale were taken as security to respondent’s indebtedness growing out of the transaction. . Yet appellant, •when it obtained possession of this real and personal property, sold and disposed of the same as its own absolute property, instead, of foreclosing its alleged lien thereon; and it appropriated the whole of the proceeds thereof to its own use and benefit. According to the testimony of respondent, the value of the house and lot and automobile was some $500 in excess of the amount of indebtedness represented by said alleged sham notes. It also appears from the evidence in this- case that respondent sent said automobile to appellant by one Fuller, with instructions not to- deliver the same to appellant until appellant paid to Fuller the difference between the amount appearing to be due on the notes and $600, the value of the automobile; that in some manner appellant obtained possession' of the automobile without making the payment, and when Fuller was endeavoring to obtain this difference, according to the testimony of Fuller, the president of the appellant said to him:
“I don’t know whether you understand this deal or not. Now, we have a conditional bill of sale of this car that expires the 1st day of April.- Mr. Kennedy has released all his rights to- the car. In fact, it never did belong to Mr. Kennedy; the deal was ours all the way through.”
I am clearly of the view, notwithstanding the letters of respondent, that, under the whole evidence and surrounding circumstances, there was a substantial -conflict on the issue as to whether or not respondent was the real party to the transaction in .question; and that the verdict of the jury should not be disturbed. It was the sole -and exclusive province of the jury to determine this conflict. •