AMERICAN NAT. BANK OF DENVER v. WATKINS, 119 F. 545

JENKINS, Circuit Judge (after stating the facts as above). The special finding of the statute should speak the ultimate facts on which the law must determine -the rights of the parties, and should not contain a_ statement'of the evidence from'which those facts are determined. It is immaterial whether the finding rests on oral testimony or upon written evidence, or in part upon one and in part upon the other. The finding of fact is conclusive upon the appellate court, which may not search the evidence to ascertain if the finding be warranted.

We may only inquire whether error intervened in the admission or exclusion of testimony, which should work a reversal of the judgment, and whether the facts found support the judgment rendered. ’i..e courts have often spoken to this subject, and the question is no longer an open one. Wilson v. Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113; Distilling & Cattle Co. v. Gottschalk Co., 13 C. C. A. 618, 66 Fed. 609; Insurance Co. v. International Trust Co., 17 C. C. A. 616, 71 Fed. 88; Minchen v. Hart, 18 C. C. A. 570, 72 Fed. 294; Jenks’ Adm’r v. Stapp, 9 U. S. App. 34, 3 C. C.

A. 244, 52 Fed. 641; Corliss v. Pulaski Co. (C. C. A.) 116 Fed. 289. We pass the first exception without comment, because the record fails to disclose that the defendant in error presented any findings, or requested the court to adopt them, or that there was any refusal upon the part of the court with respect thereto. We say this without implying that the practice suggested is permissible, or that error may be assigned upon refusal of the court to find as requested.

The second exception is to that portion of the third finding of fact which declares that the note was obtained by the plaintiff in error subject to any defense affecting the consideration, and that the plaintiff in error was not a bona fide holder for value, without notice. The objection urged is that this finding is a conclusion of law, and is not supported by the evidence. We are not warranted in looking into the evidence to ascertain if the finding be supported by it. The finding is not that of a conclusion of law. It is a finding of fact, dependent upon the circumstances under which the note was transferred.

The third exception is to that part of the fifth finding of fact to the effect that the court found nothing in the conduct of the defendant touching the foreclosure of the first mortgage by Barth and the bank, and the ensuing litigation with Coler, to charge him with responsibility for the loss thereby incurred. That is also a conclusion of fact, rather than of law,—a negative statement which finds as_ a fact that the defendant in error did not request or sanction the litigation in question. We may not review the evidence to ascertain whether that finding be warranted.

It may, perhaps, be said of the findings that they embody evidence and inferences of fact in addition to the ultimate,facts upon which judgment must proceed; but that gives the appellate court no right of review. The fourth exception goes to the conclusion of law that the defendant below was entitled to judgment of dismissal of the complaint, and this proceeds upon the theory that the facts found do not support the judgment. The issue presented, aside from the question whether the plaintiff in error held the note subject to equities, is whether the consideration of the note had failed.

The court, by its fourth finding, stated the facts found with respect to the execution of the note and its .consideration. The court has not found as an ultimate fact that the consideration of the note was the agreement to convey the title to the land, but it does find that such was the purport of the agreement under which the note was executed. The finding seems to be that of the court’s conclusion of the legal effect of the agreement of the parties. We have therefore sought to ascertain if the court below correctly held with respect to the legal effect of the agreement of January 20, 1892.

The question is one not without difficulty, and has engaged our careful scrutiny. We have reached the conclusion that the court below was correct in. its finding. The reasoning of the opinion of the court below, which is- incorporated in the statement of facts, seems to us well founded, particularly in view of the fact found by the court that Barth owned the real estate and prior mortgages thereon, without promise or obligation on his part or on the part of the bank to sell or otherwise dispose thereof to" the defendant.

That being the condition of affairs at the time of the execution of the agreement of January 20, 1892, we think the court below was right in holding that the agreement was that of bargain and sale of the property and the securities mentioned, and that the subsequent failure of title through the conduct of Barth and the bank should not be visited upon the defendant in error. It is also urged that partial failure of consideration is not a good defense at law, the amount being unliquidated. This is the English rule, formerly followed in the United- States. Wentworth v. Goodwin, 21 Me. 150; Morrison v.

Jewell, 34 Me. 146; Hogden v. Golder, 75 Me. 293; Drew v. Towle, 27 N. H. 412, 59 Am. Dec. 380; Riddle v. Gage, 37 N. H. 519, 75 Am. Dec. 151; Richardson v. Sanborn, 33 Vt. 75; Pulsifer v. Hotchkiss, 12 Conn. 234; Allen v. Bank, 20 N. J. Law, 620. But the rule is now otherwise, and the cases referred to in Connecticut and New Jersey have been in express terms overruled by the courts of those states. Avery v. Brown, 31 Conn. 398; Bouker v. Randles, 31 N. J. Law, 335; Wyckoff v. Runyon, 33 N. J. Law, 107.

We have scrutinized the many assignments of error relating to the admission and rejection of evidence at the trial. Many of them are merely formal; some going to the order of proof, some to the striking out of testimony which was mere conclusion of witnesses. We find none of them of sufficient moment to consider at length, and none of them availing to a reversal of the judgment. If any of the rulings may be considered as technical and erroneous, it is clear that the errors-charged, if such there were, could not have prejudiced and did not prejudice, and ought not to work a reversal. Lancaster v. Collins, 115 U.

S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373; Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118; Miller v. Railway Co., 5 C. C. A. 134, 55 Fed. 366. The judgment is affirmed.