MONTICELLO BANK v. BOSTWICK et al., 77 F. 123

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. In view of the issues raised by the pleadings, and the theory on which the case was tried and determined by the circuit court, the crucial question of fact was whether the plaintiff bank, when it purchased the note in controversy, knew or understood that in selling the same the firm of Bostwick & Nixon was acting merely as a broker for W. W. Bilger, the payee, and that he was the real vendor of the note. The decision of the case appears to have hinged on the determination of that issue of fact (Bank v.

Bostwick, 71 Fed. 641, 646), yet the jury failed to make a finding on that issue. They incorporated into their verdict, in a narrative form, certain testimony, which would undoubtedly have warranted a finding by the jury upon the issue above stated; but they failed to draw any inferences therefrom, or to state what conclusion they had reached, touching the issue in question upon which the judgment depends.

A special finding of fact, to be of any avail, must be a statement of the- ultimate facts which, in the opinion of the jury, the evidence tends to establish, rather than the evidence on which the ultimate facts rest. A special finding is necessarily imperfect and insufficient if it devolves upon the court the duty of deducing from the evidence the ultimate conclusion on a material issue of fact which the jury ought to draw. Insurance Co. of North America v. International Trust Co., 36 U. S. App. 291, 17 C. C. A. 616, 71 Fed. 88; Burr v. Navigation Co., 1 Wall. 99, 102.

When a case is tried by a jury, the jury is the sole arbiter of questions of fact, and the duty of finding the facts cannot be discharged in part by the jury and in part by the court. In the present case, we think it clear that the jury should have ascertained and determined from all the testimony in the case, both oral and documentary, whether the plaintiff bank bought the note from the defendants knowing that they were acting merely as brokers for W. W. Bilger, the payee, and were not otherwise interested in the paper.

In view of the fact that the special verdict is defective in the respect above indicated, and does not respond to one of the most material issues raised by the pleadings, we cannot say that the judgment was warranted by the verdict. Bank v. Farwell, 12 U. S. App. 409, 418, 6 C. C. A. 24, 29, 56 Fed. 570. The judgment is accordingly reversed, and the case is remanded to the circuit court, with directions to grant a new trial.