Page:Federal Reporter, 1st Series, Volume 8.djvu/23

 WAYNESVILLE NAT. BANK V. IRONS. 9 �out to be very important in your consideration of the case, I wisb td add that it was quite competent and proper for Mr. Haines, occupy- ing these relations to both parties to the transaction, to say, wheil it was proposed to have the note disoounted by the bank, "My position in reference to both the bank and the railway company is such that I do not think it would be proper for me to take any part in the transaction on either side;" and that, if he did so, any knowledge of any facts which he might have had at that time would not affect the rigbts of the bank. To charge the bank with responsibility auVl liability on account of any knowledge of Mr. Haines, he must, in my opinion, be acting at the time in the name and on behalf of the bank, as its agent and representive. If he was not, but if the hego- tiation was in fact conducted by the cashier, and Mr. Haiiies decline d to take any part in it, and refused to be considered as acting for either party, then the question will be, not what Mr. Haines knew, but what the bank may have known by reason of any knowledge on the part of the cashier, and is not chargeable with the knowledge of Mr. Haines. �I am asked to add to the charge, in reference to the relation between Mr. Haines and the bank, and the effect of any knowledge on his part, this charge: �"If you flnd that Mr. Haines declined to participate in the negotiations for the discount of the note, but, notwithstanding that, he did in fact participate in any part of these negotiations, the bank is chargeable with notice of any facts in the knowledge of Haines constituting a defence to the makers of the note, as already stated in the general charge." �I am' unwilling to give that charge in these terms, because it is possible there is ambiguity in them. But I will add to my charge this : In order to prevent the bank from being liable for Mr. Haines' knowledge, his declining to participate in the negotiations must be real, and not merely formai ; it must not have been a tnere pretence ; it must not have been merely in words, but in fact. What I mean to say is, not that he said so and so, but that he did not in fact partici- pate in the negotiations on behalf of the bank. At the same time if you find this to be the fact : that Mr. Haines, on being inquired of by the cashier in respect of the propriety of discounting the note, had replied to him, "These names are undoubtedly good for $10,000, but my relation to the two companies is such that I decline any part in the decision of the question of the discount of the note," and there- upon withdrew and took no further part in it, I don't consider the mere answering of that question a participation in the transaction ��� �