First National Bank v. Egge ( 1870 )

Cole, Ch. J.

There were no facts found by the district court, and no propositions of law ruled or determined by it. Upon the evidence the court found for the defendant; that finding stands here the same as a verdict of the jury. The only question, therefore, made by this appeal is, as to the sufficiency of the evidence to sustain the finding. It is very clear from the testimony that the note was given as a premium for insurance; that the same was transferred to plaintiff before due as collateral security for a loan; that the insurance company failed, and the premium earned up to date of failure was $11.03, which amount defendant paid to plaintiff on the note before suit brought; and there was some evidence tending to show that, when the insurance was effected, it was agreed that defendant might surrender his policy at any time, and, upon paying the premium earned, should receive his note; and also that the defendant was induced to insure by means of false representations by the insurers and payee of the note ; there was some evidence, too, tending to show that plaintiff had knowledge of these facts. The court must have found this latter fact. As an original question we should find the other way; but there is not such an absence of testimony in support of the verdict or finding as will justify us in setting it aside.

Affirmed.