Doerstler v. First Nat. Bank , 82 Or. 92 ( 1916 )

Mr. Justice McBride

delivered the opinion of the court.

1. Many of the questions raised on this appeal have been settled in previous cases arising between the defendant and other depositors. The motion to strike out portions of plaintiff’s reply to defendant’s plea of estoppel was properly overruled. As held in Carlon v. First Nat. Bank, 80 Or. 539 (157 Pac. 809), and Verrell v. First Nat. Bank, 80 Or. 550 (157 Pac. 813), the bank examiner was not the agent of the bank, and no statement to him would estop the plaintiff from asserting the facts in an action between him and the bank.

2. The plaintiff, however, assuming the facts to be well pleaded, replied by showing that he was not in possession of all the facts when he signed the certificate requested by the bank examiner, and, while the matter pleaded is somewhat prolix, we think it is relevant. The circumstances were not fully and fairly stated in the letter written by the bank examiner, and the certificate at the bottom which plaintiff was requested to sign was evidently framed so as to entrap the plaintiff into an affirmative answer. He was requested to sign if the statement appended was correct. It would have been but fair if the examiner had fully stated the exact condition of affairs as between the bank and Sheridan, and then asked the plaintiff to write a reply instead of making a partial statement of the circumstances and confining plaintiff to a “yes or nothing” answer. The other questions raised upon the testimony are discussed in the cases above cited, and need not here be considered.

3. Taking the plaintiff’s testimony as a whole, it tends to show that he was dealing with Sheridan as a representative of the bank, and supposed that it was the bank which was to loan his money for him. Granted that he was presumed to know as a matter of law what neither laymen nor lawyers usually know as a matter of fact, namely, that the bank could not loan his money for him, it does not follow that one of the officers of the bank had a right to use his official position and the bank’s apparent responsibility as a false token to get plaintiff’s money. No doubt, the method by which the bank would draw the money when a loan was made was rather hazy in his mind, as his letters introduced in evidence show that he is an uneducated, ignorant rancher. He knew that the bank had his money and was responsible, and the president of the bank in its place of business told him that he could loan it for him at 6 per cent. To him, as to most ignorant people, the president was the bank. As he expresses it in his crude way, “I supposed the bank would be security for the money”; that is, he supposed that he was dealing with the bank, and that it was responsible and able to replace his money within 30 days if he called for it. Had he presented a certificate of deposit for payment and Sheridan had said to him, “I will pay the certificate next week,” neither he nor anyone else would have understood that Sheridan intended to pay it out of his own pocket, and when Sheridan said, “I will loan your money and pay you 6 per cent interest,” he naturally supposed that Sheridan was speaking for the bank, and no doubt Sheridan intended that he should so believe. Assuming that there was technical error in the instructions, we would still be disposed to affirm the judgment under the provisions of Article VII, Section 3, of our Constitution as amended; but there is no reversible error if we take the instructions as a whole.

4. The first objection to the instructions is that the court, in stating what the plaintiff claimed, used the following language: “And that Mr. Sheridan told him [plaintiff] that he would lend the money for him at a premium. ’ ’ Whereas the plaintiff had actually employed this language: “So he told me he would loan it out for me and give me 6 per cent interest,” The court was not attempting to quote the testimony verbatim, but in a general way to call the attention of the jury to the issue between the parties, and the use of the word “premium” instead of “6 per cent interest” could not mislead the jury.

5. It is next objected that the court did not give an instruction correctly defining tbe limitations upon the powers of national banks. There was no occasion for such an instruction under the pleadings or evidence. The plaintiff’s contention was that he had deposited his money in the bank, and the bank had refused to repay him. The defendant’s contention was that plaintiff had authorized Sheridan personally to draw it out and loan it, and that he had drawn it out pursuant to such authority. The plaintiff takes issue here, and claims that he did not authorize Sheridan personally to loan the money, but that such authority was given the bank, and that Sheridan, the principal officer of the bank, drew it out and misappropriated it. If plaintiff made Sheridan his agent to loan the money and withdraw it from the bank for that purpose, and he did so, the bank is not liable, and the court, in effect, so instructed. If he attempted to make the bank his agent, and its president drew out the money and misappropriated it, no matter what the bank’s limitations as to lending money for others may be, it is liable for the money so unlawfully withdrawn. It does not follow that, because plaintiff attempted to give the bank authority to do an act in relation to his deposit that was ultra vires, an officer of the bank could withdraw an amount of money equal to plaintiff’s deposit, charge it up against plaintiff, and convert it to his own use. As remarked by Judge Deady in United States v. Randall, 1 Deady, 524, Fed. Cas. No. 16,118, where a postmaster was convicted of stealing gold-dust from the United States mails, and the contention was made that gold-dust was not mailable matter. “Because gold-dust is not mailable, it does not follow that it is not stealable. ’ ’ So here it does not follow that because the bank had no right to act as a broker for plaintiff, and Ms alleged authorization of it to do so was void, the president of the bank could steal an amount and cover the theft by charging it against plaintiff’s balance, and thereby relieve his bank of liability. Whether the bank under the circumstances could lawfully have loaned the money for plaintiff is a matter of no importance. It says that it did not loan it, and plaintiff says it did loan it, so the whole question comes down to tMs: Did plaintiff authorize Sheridan personally as his agent to draw out and loan the amount of his deposit? This the court left to the jury, and it has found that he was not so authorized.

6, 7. Exception is taken to some language used by the court in instructing the jury upon the law of estoppel. There' are some expressions in this part of the charge which taken alone might seem to have a tendency to mislead, but when considered with the context this cannot be said to be their effect. The whole of the court’s charge on that subject is as follows:

“The defendant then also, as I have already told you, has pleaded that wMch is denominated as estoppel. And you will remember the fact alleged with regard to that particular defense is this: That upon the inspector, Goodhart, sending to the plaintiff a letter making inquiry as to the matter of these particular charges against Ms account, he answered as has already been read to you with regard to it. And it is alleged in the answer that for this reason the plaintiff is estopped; that is, by his own answer. What is meant by that is that he is prevented from asserting his right or his claim to this particular money, because he made the answer which he did, and it becomes necessary for me, gentlemen, to explain the law applicable to that particular feature of the case, and it is also quite an important matter of the law for you to consider in applying it to the facts in this case. I cannot better illustrate the proposition of estoppel, gentlemen, than by this: We will suppose that one of you jurors owned a horse, and another person, a third party, came by and made a bargain with yet someone else for the horse, in yonr presence, the horse being yours, and you stood by and allowed the purchaser to pay his money for your horse and take it, supposing that it belonged to the seller, whereas, in truth and in fact, it belonged to you; the law says that under such circumstances as that, although the horse belonged to you in fact, you could not now assert it, because it would be fraud and imposition upon the person who was led to pay his money for the horse when you by acting at the time could have prevented it. And the law says that an estoppel is that in which a person by his own act which he has committed precludes himself from asserting the truth; and what they intend to say by this answer is that the plaintiff in this case, being asked at the time as to the facts in the matter, that he did not assert the truth, that is, contrary to what he now says, and for that reason he is estopped to state the truth, that is, to recover the money. Plaintiff says it belonged to him, he did not authorize Sheridan to make this loan to himself or these parties, and says he was dealing with the bank. They say that he should have said that at that time. Now, as to that, gentlemen, I state to you that if you find under the law as I shall give the same to you in this case that the plaintiff has deposited the money as claimed in this bank, and that there is still due him an amount of money, if you find that under the law as I shall give it to you, applying it in this case, then he is not estopped in this case to assert his rights and to recover whatever you may find to be due him. This letter, which you have seen and which has been admitted — the plaintiff admits that he made this answer — is allowed to go before you, and you have the right to consider it. It is in the nature of a declaration made by him, you giving it such credit as you may deem it to be worth, and, after applying it, taking the answer he has made and all of the circumstances •in the case, you find that the evidence is with the plaintiff, that the facts are as he claims them to be in regard to that contract or the authority which was given to the bank, then, notwithstanding the fact that he may have written the letter and which he admits that he did, he still would be entitled to recover what you find due him in this action. The reason for that is that the bank inspector did not represent the bank. And it is not in evidence that the bank in any way changed its' position by reason of any answer that the plaintiff made. And so I say to you that so far as being es-topped, conclusively estopped, to assert the claim which the plaintiff is making in this action, he is not estopped by the fact that he has written that letter; but if you should find from the evidence, and you have a right to consider the letter for that purpose, that he authorized Sheridan to make the loan or loans, and that the dealing was as claimed in defendant’s answer as set forth, if you find that fact by preponderance of the evidence, then the plaintiff could not recover in the case. And I instruct you in connection with that fact that you have a right to consider the transaction, where it took place, the manner of dealing, under the circumstances, dealing with the bank, and then make up your mind from all of the evidence in the case as to whether or not the plaintiff authorized Sheridan to take this money from the bank, or whether he gave authority to the bank to lend his money as he stated. And I instruct you that, if he did authorize the bank to lend his money, that would not authorize Sheridan or any officer of the bank to appropriate his money. ’ ’

In defendant’s view of the case the vice of this instruction, the sting in the tail of the scorpion, so to speak, is embodied in these words:

“And the law says that an estoppel is that in which a person by his own act which he has committed precludes him from asserting the truth; and what they intend to say by this answer is that the plaintiff in this case, being asked at the time as to the facts in the matter, that he did not assert the truth, that is, contrary to what he now says, and for that reason he is estopped to state the truth, that is, to recover the money. Plaintiff says it belonged to him, he did not authorize Sheridan to make this loan to himself or these parties, and says lie was dealing with the hank. They say that he should have said that at that time.”

If we substitute the word “fact” for “truth,” the instruction would substantially conform to Mr. Bouvier’s definition of an estoppel, which he declares to be primarily:

“The preclusion of a person from asserting a fact by previous conduct inconsistent therewith on his own part, or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question.”

While this definition may cover many instances, it is too narrow to cover all. A more comprehensive one is given in Demarest v. Hopper, 22 N. J. Law, 599, quoted with many others of like character in 3 Words and Phrases under this title:

“An estoppel is where a man is concluded and forbidden by law to speak against his own act or deed; yea, even though it is to say the truth.”

Standing alone, that part of the definition given by the court in the instant ease would be misleading, but, taking the whole instruction together, it is apparent that the court did not assume the truth of the statement made by plaintiff upon the witness-stand in explanation of his contradictory statement made to the bank examiner. For instance, the court said in defining estoppel:

“WTiat is meant by that is that he [plaintiff] is prevented from asserting his right or his claim to this particular money because he made the answer which he did.”

—referring to plaintiff’s answer to the Goodhart letter, and again:

“Plaintiff says it belonged to him; he did not authorize Sheridan to make the loan to himself or these parties. They say he should have said that at that time.”

Further, it will he seen from that part of the charge first quoted that the court, while holding, as this court held in previous cases, that the letter was not technically an estoppel, instructed the jury in effect that they could consider it for the purpose of determining the question as to whether the plaintiff had, in fact, authorized Sheridan to withdraw the money, and that, if they found such to be the case, the plaintiff could not recover. The effect of the whole charge upon this subject was to submit to the jury the question of the truthfulness of his statements made in the letter to the bank examiner. We do not think that, considered as a whole, the instruction contains reversible error or that the jury could have been misled by it.

8. Other objections are urged to expressions used by the court in its instructions, but, in our opinion, they go merely to their technical accuracy. If in the hurry of a nisi prius trial every word and sentence were weighed by this court with an eye singled to discover technical defects, there would be scarcely a law case brought here which would not be reversed, but such is not the duty of an appellate court. Here the question is: Were the issues fairly and fully given to the jury, was the law correctly stated to them, and if it transpires that the charge is in any respect inaccurate, was such inaccuracy of such a character that it might have changed the result of the verdict? We do not find such a state of affairs in this case. As we view it, there was but one question for the jury to decide, and that was whether the plaintiff authorized Sheridan as an individual and as his agent to draw against his deposit in the bank and to loan the money so withdrawn. If he did not, he should recover, and the verdict was right; and this issue, as well as the rules hy which the evidence should be weighed, were, in our opinion, fairly stated without substantial error.

The judgment is affirmed. Affirmed.