(concurring specially). I concur in an affirmance •of the judgment. I am not, however, prepared either to concur in or dissent from the reasons on which the opinion prepared by Mr. Justice ftobinson is based.
I shall therefore briefly set forth the reasons which lead me to the conclusion that the judgment should be affirmed.
The answer “admits that on the 19th day of September, a. d. 1914, the defendant had on deposit in its bank, to the credit of the said plaintiff, the sum of $2,068.66.” The answer further, “by way of counterclaim, alleges: That between said 19th day of September, 1914, and the 1st day of October, 1914, the defendant, by authority and at the instance and request of the plaintiff, paid for the use and benefit of •said plaintiff of the moneys so on deposit to his credit, the full sum •of $2,054.51. That the said defendant now has in its possession belonging to said plaintiff the sum of $14.15, for which said sum the defendant hereby offers judgment in favor of the plaintiff, with costs accrued to the date of service of the answer.”
The plaintiff interposed a reply denying the allegations of the counterclaim and refusing the offer of judgment contained therein. The issue raised by the counterclaim and the reply was the only issue of fact presented by the pleadings in the case. As developed by the testimony, *316this issue really resolved itself into whether the plaintiff Krueger ini January, 1912, requested the bank to loan to, or advance for, him the necessary moneys with which to pay the Kennedy judgment. Upon this question there was a square conflict in the evidence. It is conceded that the arrangement with respect to the payment of the Kennedy judgment was made between Phelps, the vice president of the defendant bank, and the plaintiff, Krueger. It is also conceded that this arrangement or agreement rested wholly in parol; that no written memorandum was made; nor was any note or other evidence of indebtedness taken from Krueger. According to the testimony of Phelps, there were three persons present when the arrangement was made, namely, Phelps, and Powers, the cashier of the defendant bank, and the plaintiff, Krueger. Powers, however, testified that he had no personal knowledge or recollection of the conversation, and that the principal part thereof took place between Phelps and Krueger in the back room of the bank, while Powers was in the front room.
Phelps testified that Krueger requested the bank to advance the moneys required to pay the Kennedy judgment; and that pursuant to such request the bank did advance such moneys and paid the judgment, and subsequently charged the amount so advanced against Krueger’s checking account in the bank.
The plaintiff, Krueger, testified that at the time the action was commenced against him on the supersedeas bond in January, 1912, he had a conversation with Mr. Phelps in regard to the matter; that during such conversation he directed the attention of Phelps to the two resolutions adopted by the stockholders of the two banks, at the time the defendant bank purchased the assets of the State Bank of Bowbells; that thereupon he and Phelps studied the resolutions together, and that after study and consideration thereof Phelps expressed it to be his opinion that under the resolutions the defendant bank had assumed liability for the claim upon which the Kennedy judgment was based, and consequently was liable for the payment of such judgment. Krueger says: “I never asked the bank to loan me $2,300. Phelps said the bank was liable under the resolutions, and that the defendant bank would pay the judgment, get the $500 from Crane and $500 from Landsborough and carry the collateral in stocks and bonds and let it work out.” Krueger further testified that he did not authorize *317Pbelps to send tbe money to pay tbe judgment, and tbat Pbelps sent it for the bank. Krueger also testified tbat tbe defendant bank at one time charged against him upon bis bank book the expense of a certain trip made by Pbelps to Idaho to see Mr. Landsborough in regard to the Kennedy judgment; tbat plaintiff, upon receiving bis bank 'book, objected to such charge, and tbat tbe defendant bank receded from its position and eliminated tbe charge. Tbe evidence shows tbat tbe bank paid tbe Kennedy judgment in January, 1912; tbat in tbe month •of April following, tbe plaintiff, Krueger, bad on deposit in tbe defendant bank in bis checking account therein an amount considerably in excess of tbe amount of money involved in this litigation; tbat aucb moneys remained on deposit in tbe bank for some time; and tbat 'the defendant did not endeavor to charge tbe amount of tbe alleged claim to tbe account of Krueger until in September, 1914. Tbe evidence also discloses tbe fact tbat Pbelps, tbe vice president of tbe defendant bank, was a lawyer.
It seems clear to me tbat tbe case involves purely and simply a •question of fact, viz., whether tbe bank advanced the moneys to pay the Kennedy judgment upon tbe request of tbe plaintiff, Krueger, or whether it paid tbe same voluntarily and without any request from Krueger.
No error is predicated upon tbe court’s instructions to tbe jury, and •consequently tbe instructions must be assumed to be correct.
Appellant, however, assigns error on tbe court’s refusal to receive certain evidence offered by tbe defendant, for tbe purpose of showing what liabilities were contemplated by tbe parties in tbe two resolutions referred to in tbe majority opinion. Defendant offered to prove tbat it was agreed by tbe directors and stockholders of tbe respective banks tbat tbe then pending suit of Kennedy, upon which tbe judgment was •obtained, was not to be assumed by tbe defendant bank.
In my opinion it is not necessary to determine in this case whether ■the two resolutions must be taken to embody tbe entire contract, or whether they are to be deemed merely evidence tending to establish contractual relations which may be explained and supplemented by other testimony. An examination of tbe record shows tbat tbe two resolutions were received in evidence without objection, although a considerable time subsequent thereto defendant moved tbat they be stricken ■out.
*318Whether the defendant bank had assumed the Kennedy claim under its contract with the State Bank of Bowbells is not an issue raised by the pleadings. The sole issue raised by the pleadings is whether the defendant “by authority, and at the instance and request of the plaintiff, paid for the use and benefit of said plaintiff, of the moneys so on deposit to-his credit, the full sum of $2,054.51.” It is manifest that the defendant bank had no authority to pay such judgment of its own volition, and charge the same against plaintiff’s account in the bank. Whether plaintiff requested defendant bank to pay such judgment depends upon what was said in the conversation between the plaintiff and Phelps. As-already stated, the testimony of the plaintiff, Krueger, is to the effect that these resolutions were considered and read over during the conversation between Krueger and Phelps. Powers, the cashier of the defendant bank, also testified that Phelps had stated to him that “a broad construction may be applied to the resolutions,” and the bank thereby held responsible for the Kennedy judgment under the resolutions.
The jury was entitled to know everything that was said during such-conversation. And as these resolutions, according to- plaintiff’s testimony, formed part of the matter discussed and considered during such conversation, they were properly received in evidence in connection therewith, regardless of their contractual force or effect. What the defendant offered to prove did not relate to anything said or considered during the conversation between Krueger and Phelps, but something which took place at the time the resolutions were adopted five years previous thereto. It seems self-evident that this was not material and could have no possible bearing upon -the conversation which took place between Phelps and Krueger, unless it was also shown that the matter which defendant offered to prove was known to Phelps and Krueger, and considered or discussed by them during their conversation.
The pivotal question in the case was whether the plaintiff requested the defendant bank to advance the money and pay the Kennedy judgment for him. The answer to this question must be found in the conversation between Phelps and Krueger.
The jury which heard the testimony upon this question believed the plaintiff’s version thereof to be the correct one. The jury’s finding; *319is amply supported by the evidence, and is binding on this court. The judgment should be affirmed.