Counsel for appellees appear to have failed to understand the grounds upon which we reversed the judgment in this cause and request among other things a more definite statement.
We supposed we had made it plain that in our judgment the undisputed facts showed that whatever the appellees wished or intended the thing that was actually accomplished was a sale by the bank of the note and collateral, the negotiations being made through W. C. Tyrrell, Sr., for the use of his son. It is true that both Tyrrell, Sr., and Norvell, *Page 629 the president of the bank, speak loosely of the sale of the collateral, but the facts established by all the testimony without question from any source was that Norvell during the very discussion that resulted in the transfer told Tyrrell (in response to a proposition to buy the collateral for his son) that the bank did not want to get into any trouble about it and that they would transfer the note without recourse and Tyrrell could do as he pleased with it. In pursuance of this Norvell instructed the cashier to transfer the note without recourse which was done. Now of course if the bank had sold Hart's collateral for enough to satisfy the note it should have been retained by the bank, marked paid and surrendered to Hart. This W. C. Tyrrell, who was an officer of the bank, must have known. But if more is asked what can render the matter more conclusive than that the Tyrrells, if the collateral had become suddenly worthless, could nevertheless have sued Hart upon the note assigned to them and reduced it to judgment. In addition to all this even if it be conceded that the prior negotiation looked to a sale and not an assignment of the note the bank officials had the right to change their purpose at the last moment and this was manifestly done. On page 41 of the record Tyrrell, Sr., speaks of his son's purchase of the note, and on page 42 says he did not know whether they had transferred the note to him or to his son. He admits that if they had been making a sale of the securities they would have marked the note paid. On page 39 Tyrrell, Sr., says, "My son arrived from Iowa Tuesday night and he had $8000 and I got him to buy the note and take the security and he paid it with his check."
In view of all this we think there can be no question as to the form the transaction finally assumed or the legal effect of the facts. We also adhere to the opinion that the value of the collateral was in excess of the balance due on the note, but that question we have relegated to the jury. As the matter now stands the adjustment of the rights of the parties is a very simple task. The motion for rehearing is overruled.
Overruled.
Filed November 21, 1904. *Page 630