Meyer & Chapman State Bank v. First Nat. Bank

• Citation: 291 F. 42
• Decision Date: 15 June 1923
• Docket Number: 5923.
• Parties: MEYER & CHAPMAN STATE BANK v. FIRST NAT. BANK OF CODY.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

291 F. 42

MEYER & CHAPMAN STATE BANK v. FIRST NAT. BANK OF CODY.

No. 5923.

United States Court of Appeals, Eighth Circuit.

June 15, 1923

W. L Walls, of Cheyenne, Wyo., and E. E. Enterline, of Casper Wyo. (Herbert V. Lacey and John W. Lacey, both of Cheyenne Wyo., on the brief), for plaintiff in error.

George E. Tralles, of Denver, Colo. (Henry McAllister, Jr., of Denver, Colo., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges.

KENYON Circuit Judge.

This is the second appearance here of this case. The former opinion is found in 248 F. 679, 160 C.C.A. 579, where a very complete statement of the facts as presented in that trial appears. To that we refer for a history of the transactions involved. As we proceed with this opinion there will be pointed out some of the differences in the records of the two trials.

It is claimed by plaintiff in error that as the former opinion of this court held the $10,000 in controversy to be a loan from plaintiff in error to defendant in error, and that the evidence in the second trial was substantially the same as in the first, therefore it is the settled law of the case that defendant in error borrowed the $10,000 from plaintiff in error and has never repaid it. It is well-established doctrine in the federal courts that, upon a second writ of error or appeal, questions of law or fact determined upon the first trial cannot be reconsidered, provided the evidence was substantially the same upon both trials. Such decision, unless the evidence differs in material respects in the second hearing, becomes the law of the particular case. In this jurisdiction, see Thatcher v. Gottlieb, 59 F. 872, 8 C.C.A. 334; Balch et al. v. Haas, 73 F. 974, 20 C.C.A. 151; Board of Com'rs of Ouray County v. Geer, 108 F. 478, 47 C.C.A. 450; Guarantee Co. of North America v. Phenix Ins. Co., 124 F. 170, 59 C.C.A. 376; Denver & R.G.R. Co. v. Arrighi, 141 F. 67, 72 C.C.A. 400. This court in Thatcher v. Gottlieb, 59 F. 872, 873, 8 C.C.A. 334, 336, said:

'We are not disposed to recede from that position, nor could we do so, for the ruling formerly made has now become the law of the case, if the evidence on the first and last trials is substantially the same.'

In Balch v. Haas, 73 F. 974, 20 C.C.A. 151, this court said:

'It is well-established doctrine, in the federal courts at least, that a second writ of error or a second appeal in the same case only brings up for review the proceedings of the trial court subsequent to the mandate, and that it does not authorize a reconsideration of any questions, either of law or fact, that were considered and determined on the first appeal or writ of error, provided the testimony on each trial was substantially the same.'

Likewise in Town of Fletcher v. Hickman, 208 F. 118, 121, 125 C.C.A. 346, 349:

'The issues and the evidence at the second trial differ in no material respect from those at the first trial. A legal proposition, once considered and decided in a given cause by an appellate court, may not be again questioned in that court on a subsequent writ or appeal to review a subsequent trial of the same case on the same issues and evidence. Such propositions are res adjudicata between the parties to that suit and their privies, and constitute the law of the case.'

In other jurisdictions, see Mathews v. Columbia Nat. Bank of Tacoma et al., 100 F. 393, 40 C.C.A. 444; Messinger v. Anderson, 171 F. 785, 96 C.C.A. 445; Roberts v. Cooper, 20 How. 467, 481, 15 L.Ed. 969; Thompson v. Maxwell Land Grant & R. Co., 168 U.S. 451, 18 Sup.Ct. 121, 42 L.Ed. 539; Wayne County v. Kennicott, 94 U.S. 498, 24 L.Ed. 260; Phelan v. City and County of San Francisco, 20 Cal. 39, 44.

In the former opinion this court expressed itself as follows:

'Upon the merits we think the evidence shows without substantial conflict that plaintiff loaned the defendant $10,000 for 30 days upon the security of the Holm note with its collateral. Defendant applied that money to its own use, and has never repaid it.'

It may be conceded that, if the facts in the present record do not materially differ from those in the former hearing, the decision then made, whether right or wrong, is the law of this case. Let us see if such material difference exists in the evidence.

In the former trial no evidence was introduced on the part of the defendant. In the present trial the defendant introduced the evidence of four witnesses, namely, Mr. W. T. Hogg, Mr. Adam Hogg, Mr. L. R. Ewart, and Mr. Charles J. Ohnhaus. Defendant's Exhibits Nos. 1 and 2, being pages from plaintiff's bills receivable register, were introduced in the present trial and not in the former. Exhibit No. 4, being the account of the Holm Transportation Company with the First National Bank of Cody, Wyo., likewise appears in the present record. In the former case only one item thereof, to wit, that of May 6th, showing a credit to the Holm Transportation Company of $10,000, was introduced. The entire exhibit, now being introduced, shows that the Holm Transportation Company checked out this money. That fact did not appear in the former case, and is a matter of consequence. The testimony of witness Chapman in the present case is more extended than in the former, and it could be urged to a jury or to a court under the present testimony that Mr. Chapman knew the application for the loan was from the Holm Transportation Company, and whatever legitimate inferences could be drawn therefrom would bear on the question of whether in fact the $10,000 was loaned to defendant in error or to the Holm Transportation Company. Exhibit No. 12 in the present case is new evidence, though not of any particular importance. A number of exhibits in the former hearing on the part of plaintiff in error were not introduced in this trial.

It is apparent from the decision of the trial court that he took into consideration, as important matters, testimony that was not in the first trial, namely, the conversation between Mr. Deegan and Mr. Chapman, as testified to by Mr. Hogg, wherein Mr. Deegan talked to Mr. Chapman concerning the transportation company borrowing $10,000 from him. Further, it appears by Defendant in Error's Exhibits Nos. 1 and 2 that the Meyer & Chapman State Bank, when it was agreed that it would furnish the money, placed a record of the Holm note in its discount record, and that the same was entered on the bills receivable register. Further, the evidence of Mr. Ewart bears on the question of no demand being made upon him for a payment of the alleged loan during the time he was president of the Cody Bank. Without specifying further, it is apparent that there was material difference in the evidence in the two trials on the vital point at issue, viz. whether or not plaintiff in error loaned the defendant in error $10,000, or whether the loan was made by plaintiff in error to the Holm Transportation Company. The decision, therefore, in the former trial, was not conclusive upon the trial court or upon this court, and did not become the law of the present case.

The next question presented for our consideration is as to the instructed verdict, and as to that it will be well to refer to the situation as disclosed by the record. At the close of the testimony counsel for plaintiff in error and counsel for defendant in error both submitted requests for instructions. Plaintiff in error submitted requests for 7 instructions, but did not include in them a request for an instructed verdict. Defendant in error did submit a motion for directed verdict and requested 12 instructions, one of which was a peremptory instruction to find in favor of defendant. The court denied this requested instruction to find in favor of defendant, and the argument to the jury proceeded. The next day, upon the convening of court, plaintiff presented a request for a peremptory instruction to the jury to find in its favor, and the following took place. The court said:

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