Dore v. Cottom

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 verdiet 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. 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 Sup. Ct. 246, 27 L. ed. 386, 389; Pauly v. State Loan & Trust Co., 165 U. S. 606, 623, 17 Sup. 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. St. 505; Stuart v. Bay den, 169 H. S. 1, 18 Sup. Ct. 274, 42 L, ed. 639, 641; McDonald v. Dewey, 202 U. S. 510, 6 Ann. Cas. 419, 26 Sup. Ct. 731, 50 L. ed. 1128, 1133; C'ox v. Montague, 78 Fed. 845, 849, 24 C. C. A. 364.) 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 B. Co., 23 Ida. 324, 130 Pac. 88; Quirk v. Sunderlin, 23 Ida. 368, 130 Pac. 374; Denbeigh v. Oregon Wash. B. & Nav. Co., 23 Ida. 663, 132 Pac. 112.) The instructions, as a whole, fairly submit the ease to the jury, and in such case the verdict will not be disturbed. (Lufkins v. Collins, 2 Ida. 256, 10 Pac. 300.)