On Motion for Rehearing.
Evidently the former opinion has not made our meaning clear to appellee’s attorneys. We say this, not in criticism of appellee’s motion for rehearing, for the writer is prepared to admit that the discussion of the reasons for reversal of the case on account of the error in the submission of the issue of Brooks’ insolvency was not sufficiently full, perhaps, to clearly indicate the process of reasoning on which that result was reached. The law of the case, we think, is sufficiently and correctly stated in the opinion, and we will not re-enter upon a discussion of it. We will, however, briefly restate, in a somewhat different form, our reasons for concluding that the judgment must be reversed on the ground originally stated.
The judgment cannot be affirmed on the theory that the bank agreed to lend plaintiff’s money and be responsible for its return, for two reasons: (1) The jury found, in response to the second issue, that plaintiff’s contract was with the bank’s cashier, “in his individual capacity.” There was therefore, no contract with the bank'. If this finding cannot be given its full effect, because of conflict with other findings, no judgment could be rendered on such other conflicting findings. (2) Even if such a contract had been made with the bank, it would have been, in our opinion, ultra vires and furnished no basis of recovery on the contract itself.
If these conclusions are correct it follows that the bank would only be liable for damages resulting from its fraud or bad faith in the transaction either by participation in the breach of trust of plaintiffs agent, or, if it should be held that the bank itself and not the cashier individually was plaintiff’s agent, in its own handling of the funds intrusted to it. But the court submitted no such issue to the jury and there was no direct jury finding on it. Ordinarily, when an issue made by the pleading and evidence is not submitted to the jury, it will be presumed that the court found on it in such way as to sustain the judgment. But in this case the court was evidently proceeding on the theory that the question of fraud or bad faith was to be determined by ascertaining whether Brooks was, within the bank’s knowledge, insolvent at the time the loan was made to him — in fact, the plaintiff pleaded his case in that way, and, of course, such facts are very important in determining the ultimate issue of fraud or bad faith, and, on the finding that Brooks was insolvent within the cashier’s knowledge, the conclusion of fraud would follow inevitably. It would be doing violence to the record to say that the court made a finding of fraud, independent of and not based on the jury’s finding on the issue of insolvency submitted. Therefore the error in the charge of the court in the submission of the issue of insolvency leaves no finding of fact, free from error in the manner of its submission, on which the judgment can be based.
The motion will be overruled.