Dore v. Cottom
| Decision Date | 01 October 1917 |
| Citation | 167 P. 1164,30 Idaho 696 |
| Parties | TIMOTHY DORE, as Special Deputy State Bank Commissioner of the LEADORE STATE BANK, Appellant, v. MORRIS H. COTTOM, Respondent |
| Court | Idaho Supreme Court |
INSTRUCTIONS-CONFLICTING EVIDENCE-SUFFICIENCY OF.
1. Held, that the instructions requested by appellant and refused, also the instructions given, disclose no error prejudicial to appellant.
2. The evidence in this case is conflicting, and, under the theory upon which the case was tried, sufficient to support the verdict and judgment.
APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James R. Bothwell, Presiding Judge.
Action to recover the par value of certain bank stock alleged to have been held by a stockholder of an insolvent state bank. Judgment for plaintiff. Affirmed.
Judgment of the trial court affirmed. Costs awarded to respondent.
E. W Whitcomb, for Appellant.
The first subdivision of instruction No. 3 was wrong in requiring the plaintiff to prove that the defendant knew the bank was insolvent at the time of the transfer. The rule does not go that far, and the courts are uniform in holding that if actual knowledge cannot be known on the part of the defendant, then proof that he knew that the bank was in a failing condition, or that he had reason to believe that it was insolvent or about to fail, or words of equivalent meaning, would be sufficient. (Bowden (Adams) v Johnson, 107 U.S. 251, 261, 2 S.Ct. 246, 27 L.Ed. 386 389; Pauly v. State Loan & Trust Co., 165 U.S. 606, 623, 17 S.Ct. 465, 41 L.Ed. 844, 851; Germania Nat. Bank v. Case, 99 U.S. 628, 25 L.Ed. 448, 450; Aultman's Appeal, 98 Pa. 505; Stuart v. Hayden, 169 U.S. 1, 18 S.Ct. 274, 42 L.Ed. 639, 641; McDonald v. Dewey, 202 U.S. 510, 6 Ann. Cas. 419, 26 S.Ct. 731, 50 L.Ed. 1128, 1133; Cox v. Montague, 78 F. 845, 849, 24 C. C. A. 364.)
Stevens & Clute and A. C. Cherry, for Respondent.
The jury is the judge of the facts, and its determination, so far as the facts are concerned, is final and conclusive; provided, there is some evidence to support the verdict of the jury. (Lott v. Oregon Short Line R. Co., 23 Idaho 324, 130 P. 88; Quirk v. Sunderlin, 23 Idaho 368, 130 P. 374; Denbeigh v. Oregon Wash. R. & Nav. Co., 23 Idaho 663, 132 P. 112.)
The instructions, as a whole, fairly submit the case to the jury, and in such case the verdict will not be disturbed. (Lufkins v. Collins, 2 Idaho 256, 10 P. 300.)
This action was brought by the appellant as special deputy state bank commissioner, in charge of the affairs of the Leadore State Bank at Leadore, Idaho, against the respondent, who was one of the stockholders thereof, to recover the sum of one thousand dollars, or the par value of ten shares of stock alleged to have been held by him in said bank, together with interest thereon from the twenty-ninth day of May, 1915, that being the date payment of said sum was demanded. The cause was tried before a jury, who returned a verdict...
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