Jensen v. Sawyer State Bank

Christianson, Cb. J.

(dissenting). - I concur in tbe dissenting opinion prepared by Mr. Justice Birdzell. His statement of tbe facts is so clear, and bis reasoning so cogent, that little or nothing can be added. It is undisputed that tbe $9,000 note involved in this litigation in no manner appeared upon tbe books of the bank. It is also undisputed that, in tbe statements which tbe officers rendered to tbe state examiner, no reference was made to such note. The $9,000 note was made, and tbe lands transferred to Jensen, on December 1, 1912. Tbe sale was made to Thorson in March,-1914. During tbe interim tbe officers of tbe bank were required “to make at least five reports each year to tbe state examiner.” (Comp. Laws 1913, § 5167.) And tbe state examiner was required, “either personally or through deputy examiners,” to visit tbe bank “at least twice each year,” and inspect and verify its assets and liabilities, and investigate tbe character and value of its assets and its method of operation and conduct. (Comp. Laws 1913, § 5146.) It is undisputed that, upon bis examinations of tbe bank, tbe state examiner did not discover that the $9,000 note was outstanding, or that tbe so-called equities in land remained part of tbe assets of tbe bank. Tbe plaintiff Atkinson admits that tbe directors intended to conceal these facts from tbe examiner, and it is undisputed that they succeeded in accomplishing their purpose. Tbe books and records which Thorson was afforded an opportunity to examine before be purchased the stock from the plaintiffs were tbe same books and records which tbe state examiner bad examined. They gave no information to Thorson which they bad not given to the examiner. With full knowledge of tbe facts, not a single oné of tbe plaintiffs said anything to Thorson in regard to tbe $9,000 note, or tbe matters incident thereto. Tbe fact that tbe bank bad paid interest on tbe note, and received moneys for rent, furnished no information whatever unless those items of income and expense were checked back to their *246original sources, and inquiries made with respect thereto. Can it be possible that a purchaser of bank stock is required to check every item of income and disbursement appearing upon the books of the bank for months and years prior to the time of such purchase, in order to ascertain everything connected with such items ? Can persons who, with the avowed object of deceiving the public and public officers, make false entries and false reports, later assert such falsity to their own advantage? Can they say to one who has dealt with them with knowledge of such entries and reports, it is true the entries and reports were false, but you had no right to accept them as true; you should have assumed that they were false and acted accordingly? There should be no room for dispute as to how these questions should be answered, as long as the doctrine of estoppel is recognized and enforced by the courts.