Maynard v. Lumberman's National Bank of Williamsport

OpiNioN by

Mb. Justice Sterrett:

On January 7, 1878, Charles E. Gibson, as a member of the firm Herdic & Gibson was indebted to the Lumberman’s National Bank, defendant in error, on a promissory note for $2,000, made by G. W. Sands & Co. to the order of and indorsed by Her-dic & Gibson, and duly protested the day before, for non-payment. Gibson’s liability to the bank for amount of the note, interests and costs of protest was thus absolutely fixed.

At that time, and for a long time thereafter, John W. Maynard, plaintiff in error’s intestate, an active director of the bank, received from Gibson twenty shares of the capital stock of the bank, of the par value of $100 each, for and in consideration of which he agreed “to indemnify him from his liability as indor-ser” of the dishonored note. The stock, afterwards transferred to Maynard on the books of the bank, was subsequently sold by him for $2,500. When the note was protested the makers and indorsers were and ever since have been insolvent, and no part of the note has, in fact, been paid to the bank. These and other facts are clearly and conclusively established by the evidence.

The declaration, reciting a.t length the foregoing facts, substantially avers that Maynard received the stock from Gibson as director, officer and agent of the bank as security to it for the payment of the note; and, when he sold the stock, the consideration therefor was received by him to the use of the bank, in payment of the note, and should have been so applied; that although he was bound to so apply the money he received, or pay the same to the bank as holder of the note, he neglected and refused to do so, although often requested, etc.

Defendant below offered no evidence and that of plaintiff waa nncontr a dieted. On defendant’s behalf, the court was asked to say that upon the whole of the evidence defendant is entitled to a verdict. On the other hand, the court was requested to instruct the jury “that, under all the evidence, plaintiff is entitled to recover sufficient of the proceeds of the sale of the twenty shares of stock, and of the dividends received by Maynard on same, while in his name, to cover the debt, interest and costs of the G. W. Sands & Oo. note, indorsed by Herdic & Gibson, falling due January 6,1878, for $2,000, to cover the debt and inter-terest of said note.”

Defendant’s point was refused, and pursuant to instructions of the court a verdict was rendered in favor of the bank. The point that was refused and portions of the general charge are assigned for error; but the controlling question is whether, upon the facts directly proved and others reasonably and necessarily inferable therefrom, the bank was entitled to recover.

While, as has been stated, nearly all the material averments of the narr. are clearly established by the evidence, there is no di-' rect and positive proof that Maynard in receiving the stock from Gibson acted as agent of the bank and for the purpose of securing payment of the note owned and held by it, but his relation to the bank, and all other facts directly established by the evidence, warrant the inferencé that he did. Indeed, it is impossible to see how any other inference could have been reasonably drawn by the jury from the undisputed facts in the ease. Where there are disputed facts, or facts from which others may or may not be inferred, it is the duty of the court to submit them all to the jury without instruction as to what inferences they should accept or reject (Wenrich v. Heffner, 38 Pa. 207) ; but, when no reasonable construction of the evidence would entitle defendant to a verdict, the court may properly give binding instructions in favor of the plaintiff. McOraeken v. Huberts, 19 Pa. 391.

In this case it would perhaps have been as well to have submitted the case to the jury on all the evidence; but we are not prepared to say there was error in directing a verdict for plaintiff. If the case had been submitted and all the evidence ancT the jury had given it proper consideration the result should have been the same.

Judgment affirmed.