(concurring) .
I concur in the opinion and the judgment of the court.
The only error alleged is the failure of the district court to grant a directed verdict in favor of the trustee-plaintiff, who had the burden of proof on all the issues. Ordinarily a court will not direct a verdict in favor of the party having the burden of proof. Le Page v. St. Johnsbury Trucking Co., Inc., 1951, 97 N.H. 46, 80 A.2d 148. In some cases, this may be proper. Delaware, Lackawanna & Western R. R. Co. v. Converse, 1891, 139 U.S. 469, 11 S.Ct. 569, 35 L.Ed. 213; IX Wigmore on Evidence (3d Ed.1940) § 2495. But I think it is clear that the present is not such a case.
The only witness offered by the trustee-plaintiff, and indeed the only material witness offered by either side, was Wyant, the bankrupt. In October, 1947, Wyant 'had bought and taken over from his brother-in-law a small grocery store business in Portsmouth, N. H., which had been losing money. After several months of effort he was unsuccessful in putting the business on its feet. During this time Wyant was in close touch with the president of defendant bank, which at one time held ten or a dozen notes executed by Wyant in connection with the business. It does not appear that the bank had any information as to Wyant’s affairs *206beyond what the president of the bank was told from time to time by Wyant himself. From Wyant’s testimony, which was un-contradicted, it does appear that the bank, at the time of the payment in question, had reasonable cause to believe that the value of the assets of the store was less, by a few thousand dollars, than the total of the business debts, including what was owed to the bank. But the store was not incorporated, and in determining whether the individual proprietor was insolvent account would have to be taken of the value of whatever other assets he might possess. Nowhere in Wyant’s testimony is it explicitly stated that he informed the president of the bank that he had insufficient 'outside assets, in addition to his store assets, to meet all his obligations. Indeed, the record is lacking in affirmative evidence from which the infer ence would he compelled that the bank was either aware of Wyant’s insolvent condition or was possessed of information affording reasonable ground so to believe. Wyant had met the interest payments on the notes; had made regular payments on account of principal; and had reduced his notes to the bank in number and in total amount of indebtedness. When Wyant informed the president that he wished to get rid of the store in order to move with his family to Boston, where he had employment, the president proposed that Wyant sell the store and turn over the entire proceeds to the bank, and that the bank would then make him a further loan to enable him to pay off the other business creditors. A jury might reasonably infer from this that the bank could hardly have then known that Wyant was insolvent; and it is not suggested that the proposal was made in bad faith. Wyant did sell the store in August, 1948, for $2258.04, which he promptly turned over to the bank, $1010.00 of which went in extinguishment of an unsecured note held by the bank. Thereafter Wyant had negotiations with the bank with reference to the additional loan, but for some reason that does not appear this transaction was not consummated.
The trustee-plaintiff had the burden of establishing upon a preponderance of the evidence that when this payment was received the bank had reasonable cause to believe that Wyant was insolvent. Upon this record it cannot be said that the plaintiff had so incontrovertibly sustained this burden of proof that a contrary verdict could not rationally have been returned by the trier of the facts. Plaintiff was not entitled to a directed verdict; the issue of fact was properly left to the jury.
Judge WOODBURY concurs also in this, opinion.