Chrystie v. Foster

• Decision Date: 10 May 1894
• Docket Number: 108.
• Citation: 61 F. 551
• Parties: CHRYSTIE et al. v. FOSTER.
• Court: U.S. Court of Appeals — Second Circuit

61 F. 551

CHRYSTIE et al. v. FOSTER.

No. 108.

United States Court of Appeals, Second Circuit.

May 10, 1894

Stern &amp Rushmore (Chas. E. Rushmore, of counsel), for plaintiffs in error.

Hobbs &amp Gifford, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

WALLACE Circuit Judge.

The principal question raised by the assignment of errors is whether the trial judge erred in refusing to direct a verdict for the plaintiff. Where the defendant excepts to the direction of a verdict for the plaintiff, but makes no request to go to the jury, he cannot be heard to assail the judgment upon the ground that there were questions of fact for the jury. Provost v. McEncroe, 102 N.Y. 650, 5 N.E. 795. Where both parties move for the direction of a verdict, and neither requests any question of fact to be submitted to the jury, they concede that there is no question of fact, and that the case turns wholly upon questions of law, which are to be determined as though the facts were undisputed. Thereupon every fact having the support of sufficient evidence is presumed to have been found in favor of the successful party, and the finding is conclusive if there is any evidence to sustain it. Kirtz v. Peck, 113 N.Y. 222, 21 N.E. 130; Sutter v. Vanderveer, 122 N.Y. 652, 25 N.E. 907; Leggett v. Hyde, 58 N.Y. 275; Koehler v. Adler, 78 N.Y. 289.

The evidence in the record was sufficient to establish the following facts: The National Bank of Cheyenne, located at Cheyenne in the state of Wyoming, had kept an ordinary banker's account with the defendants, private bankers at New York City. Prior to January, 1890, the account had been closed. In January, 1890, Collins, who was then president of the Cheyenne National Bank, in order to credit himself $10,000 in his personal account with the bank, caused entries to be made in the books of the bank,-- one to his own credit of $10,000 and another intended to show, and showing, that he had deposited $10,000 with the defendants to the credit of the bank. At or about the same time he handed his own note for $10,000 to one Stebbins, who was a special partner of the defendants, with a request that Stebbins should indorse it and procure the defendants to give the bank credit for the amount as a deposit made by Rogers. Stebbins indorsed the note, and left it with the defendants, at the same time informing them of what had taken place between Collins and himself. The defendants did not at the time make any specific appropriation of the note, or credit the amount to the bank. Several months later, and about June 1, 1890, Collins informed the defendants that, pursuant to his understanding with Stebbins, they had been charged on the books of the bank with a deposit of $10,000, and that this balance had appeared against them on the books of the bank for several months. At the same time he requested the defendants to notify the bank that the $10,000 had been deposited with them to its credit, and told them that the bank would not draw against the credit. After some correspondence between Collins and the defendant, and on June 7, 1890, the defendants credited the bank on their books with $10,000, and sent them a notice as follows: 'Your account is credited this day $10,000 for use J. W. Collins with you. ' A day or two after they requested Collins to forward to them a new note for $10,000 in the place of that held by them, and which had been placed in their hands by Stebbins. Collins sent them a new note, but it was not satisfactory to the defendants in matters of form, and upon July 23d they again requested him to send them his note, payable on demand, and to send them at the same time, but separately, an authorization signed by him as president of the bank, authorizing them to charge up the note against the bank. Shortly thereafter Collins sent the new note to the defendants, together with the authorization, signed by him as president of the bank, to the effect that whenever a note for $10,000 made by Collins to the order of himself, indorsed by him in blank, should be presented to them for payment, they were to pay the same,...