(dissenting): The estimated loss of $140,000 made by the bank examiner on the date of September 17, 1921, is not the maximum or even the actual loss as of that date; but is an estimate of the minimum loss. But in addition to this, there is the matter of the excess loans. Now, I realize as an abstract proposition, that an excess loan is not necessarily an unsound loan. But these particular excess loans — most of them, not quite all — were unsound. It was thoroughly established by the evidence in this case that they were unsound when the bank closed in March, 1923. No one now contends to the contrary. Generally speaking, it was these very excess loans, unsound as they were, which caused the bank to fail. But it is argued that evidence showing these loans were unsound in March, 1923, does not establish that they were unsound when the deposit in question in this case was made in October, 1921. If this were all the evidence on the question there would be force to the argument. But there was other evidence that even prior to October, 1921, and continuously until the bank was forced to close, the soundness of these various excess loans was decidedly questionable; that the bank commissioner had repeatedly directed the officers of the bank to collect these loans or retire *309them; but although their conduct was in violation of penal statutes of the state, the bank officials continued to renew, and even to increase them. Now, can any reason be suggested why the bank officials would disregard the directions of the bank commissioner and violate the penal statutes of the state if it had been possible for them to collect these loans? .It develops they were not only unable to collect them, but unable even adequately to secure them. To me only one reasonable conclusion could be drawn from this evidence, and that is that the excess loans in question were, in fact, as unsound in October, 1921, as they were in March, 1923. It should be noted that defendants did not testify nor offer evidence of any character in this case. Obviously they were in possession of no evidence which, if introduced, would tend to contradict the conclusion which the trier of facts would naturally reach from the evidence offered by plaintiff, namely, that the excess loans which wrecked this bank were unsound in October, 1921, or even to offer evidence that would mitigate or lessen the force of the evidence from which the trial court of necessity reached such conclusion. In my judgment, we are not justified in saying that the evidence is insufficient to support finding No. 4 made by the trial court. The judgment of the court below should be affirmed.
Hopkins, J., concurs in this dissent.