(concurring). While I concur in the result stated in the opinion of the court prepared by Mr. Justice Robinson, I regard the statement of facts in that opinion and the discussion of the assignments of error as not sufficiently adequate to demonstrate the correctness of the conclusion. In concurring, therefore, I desire to state a little more fully the contentions upon which the appellant relies upon this appeal, together with whatever additional facts are'necessary to indicate the propriety of the affirmance of the judgment.
The first specifications relate to testimony elicited on cross-examination of a witness by the name of O’Brien, an employee of the bank, regarding some notes, aggregating between forty-nine and fifty-two thousand dollars. These were notes of the Northern Fire & Marine Insurance Company. At the time the evidence was received it was objected to on the ground that the transaction involving them was entirely distinct from that involving the note in suit. The evidence was received, however, upon the understanding that its relevancy would be *110established later. Appellant’s counsel later moved to strike it out on the ground that it had not been connected with the Wibe transaction, and the contention is made upon this appeal that it was prejudicial error to allow the jury to consider such testimony. Other testimony relating to this group of notes was to the effect that at the time they were received by the bank a pass book was issued to the company representing the aggregate amount so deposited with the bank. It would seem, however, that the deposit so entered did not represent a bona fide debit and credit transaction with the bank; that the bank did not purchase the notes at all or enter them on its books as bills receivable, but that it took them for collection and to be credited up to what was known as the “Collection Account.” It further appears that notes carried by the bank which had run sixty days past due and which were indorsed by the Northwestern Underwriters’ Association were to be charged back to this collection account. There was further evidence to the effect that there was a deficit in the collection account some time prior to June 1, 1914, to the extent of $10,190, which was caused by the act of the cashier of the hank, one Verry, in taking from the notes so held for collection a number of them, aggregating $10,190, and placing the amount partly to his own credit and partly to the credit of other accounts in which he was personally interested.
It appears that the bank took the note in suit on June 2, 1914, receiving it from the Underwriters’ association in part payment of a group of notes, owned by the hank and entered in its bills receivable account, aggregating with interest $14,692.66, which were past due and which were turned back to the insurance company. The memoranda which were made at the time in connection with the listing of the notes exchanged are strong evidence of the identity of the insurance company and the underwriters’ association for purposes of the financial transactions with the plaintiff bank. Eor instance, the list of notes turned back to the insurance company is headed as follows:
“Notes turned over to Insurance Co. (N. W. Und. Ass’n), by Farmers’ Security Bank on June 21, 1914, having been taken up and settled for as per attached sheet.”
The attached sheet is headed:
“Notes turned over to bank on June 2nd, 1914, by N. W. Und. Ass’n as part payment of notes described on first sheet.”
*111Among the notes so listed is the note in suit. They aggregate $8,544.20. This sheet also contains memoranda showing the payment of cash items making up the difference between $8,544.20 and $14,-692.81, or over $6,000. The respondent contends that the moment Verry took notes held for collection amounting to $10,190, the bank should have credited the collection account of the insurance company with that amount. And, since it was understood that past-due notes held by the bank and indorsed by the Underwriters’ association were proper items to charge against the collection account, the notes which the bank turned back on June 2d in exchange for the note in suit should have been regarded as paid and all liability of the underwriters’ association thereon canceled. Or, to state the matter another way, there was no consideration whatsoever or value given for the transfer to the bank on June 2d of the Wibe note, since it operated only as payment of obligations which the bank was otherwise bound to regard as paid. I am of the opinion that thére is ample evidence to establish the identity of the two companies for purposes of the financial transactions of the bank and that the connection between the arrangement with reference to the forty-nine thousand dollars of notes held for collection and the application of the proceeds in payment of notes held by the bank in its bills receivable account is so closely related to the transaction regarding the Wibe note as to affect the consideration for its transfer to the bank. There is additional testimony that further tends to establish the connection which it is unnecessary to mention. Nor these reasons, I am of the opinion that no error was committed in admitting the testimony relative to the $49,000 transaction.
It is argued that the court erred in allowing one Bradley, an officer of the insurance company and the underwriters’ association, to testify concerning promises made to return the note in suit to the maker. Beading the whole of his testimony, it appears that it does no more than to present to the jury from his standpoint the true character of the transaction between the underwriters’ association and Wibe. It was properly received for such purpose. It appears that the trial court properly instructed the jury on the subject of the liability of an accommodation maker. So that, under the instructions, the jury was com-' pelled to find a verdict for the plaintiff if it had believed that it gave value for the note without knowledge that the accommodation had been *112withdrawn or that it had been diverted from the purpose for which it was originally given. Under the instructions the plaintiff’s rights were to be measured by its knowledge at the time it took the instrument unaffected by any subsequent transactions between the association and Wibe. The testimony objected to was, in my opinion, competent and material for the purpose above indicated.
The appellant complains of evidence going to establish an admission made by one of the attorneys for the bank before the judge of the county court of Towner county in certain probate proceedings in the estate of Peter J. Wibe, deceased. It is claimed that the attorney for the bank represented to the county judge that the note in suit was an accommodation note. There is abundant evidence that the note was an accommodation note, and the plaintiff’s primary contention is that it can recover as a holder for value notwithstanding such fact. Even conceding, then, that the testimony establishing the admission of the plaintiff’s attorney should not have been received, it was clearly error without prejudice.
The appellant seems to place principal reliance upon the alleged error of the trial court in permitting the case to be reopened after both sides had rested for the purpose of taking additional evidence and of admitting thereafter the testimony of' one Agnes Olson, a daughter of the deceased. She testified that she usually wrote her father’s letters for him, and that in the latter part of March, 1914, she wrote a letter to the plaintiff bank for her father in response to an inquiry which he had received from the bank. The bank denies having written the letter of inquiry, as well as having received the letter which Mrs. Olson testifies that she wrote. The appellant constructs from her testimony the contents of the letter which, if written, substantially read:
“I am surprised to see that my notes are offered for sale as that wasn’t my understanding with the Northwestern Underwriters’ Association to sell them. So you will have to take your own risk if you buy those notes, as there is no other security behind them but the Northwestern Underwriters’ Association. I wrote Bradley to return the notes.”
An appellate tribunal, in a case of this character, is in no position to weigh evidence or pass upon the credibility of witnesses'. It is clear that if a letter such as the above was written and mailed, it has a most important bearing upon the issues in this case and we cannot deter*113mine that the trial court abused its discretion in reopening the case to permit testimony of this importance to be given. The appellants argue that the letter, if written, would constitute no notice to the bank that Wibe had withdrawn his accommodation from the underwriters’ association. It would appear, however, that the letter was such as to clearly apprise the bank that Wibe did not recognize the note as a binding obligation of any sort, and that he had, in fact, withdrawn his accommodation.
It is also argued in this connection that the court erred in instructing the jury that it was for them to say whether the latter amounted to a protest against the sale of the note by the underwriters’ association or whether it amounted to a notice to the bank that it was being-diverted by the association or notice that he was withdrawing his accommodation. It is said that the legal import of the letter was for the court and that it should not have been left to the jury to determine its effect. In my opinion, the appellant is right in contending that the legal import of the letter was for the court and should not have been left to the jury, but I am further of the opinion that the court would have been justified in instructing the jury that the letter, if written and received, amounted to notice that the accommodation was withdrawn and consequently to notice of a complete defense. The instruction, then, was really more favorable to the plaintiff than it should have been.
Though there are additional assignments argued, the views of the writer concerning them can readily be inferred from what has already been said. I am of the opinion that the judgment should be affirmed.
Christianson, Ch. J., concurs.