and the forged notes to be delivered to Wasman; that Wasman thereafter secreted or destroyed the forged notes and assigned the stock, not to the defendant but to a factoring company as collateral security for the indebtedness of the Cabinet Company in an attempt to protect its financial position and his investment; that the husband-plaintiff deposited the first check for collection which the drawee bank paid without defendant's contemporaneous knowledge of its payment; that when the husband-plaintiff deposited the second check for collection the defendant's bank account lacked sufficient funds for payment; the drawee bank so notified the defendant, who then learned that the first check had been paid from his account and thereupon stopped payment on the remaining checks.
That defendant made no demand, prior to his counterclaim, for repayment by the plaintiffs of the proceeds of the first check because defendant realized that his nephew, Wasman, had issued to the husband-plaintiff notes bearing forgeries of defendant's signature and was concerned that any pressure on the plaintiffs for recovery of the proceeds of this check might provoke retaliatory action against Wasman by the plaintiffs; that Wasman had readily accepted the false statement of the husband-plaintiff that the defendant had given instructions to use the checks for the stock purchase because Wasman was himself concerned about the outstanding forged notes he had delivered to the husband-plaintiff and desired to recover possession of them; that defendant received no consideration for the four checks from Wasman or from the plaintiffs; that the defendant did not authorize or ratify delivery of the checks to the plaintiffs or to the husband-plaintiff or the use of the checks by Wasman for the stock purchase.
Upon such a factual finding from the evidence as the foregoing, the verdicts rendered would have been inevitable. The statement of facts which the jury might have found from the evidence in this case is not intended to reflect any opinion of what might be the true facts in this bitterly disputed transaction.
The reasons assigned for the plaintiffs' motion for new trial are not persuading. The verdict was not contrary to the evidence, the weight of the evidence or the law. The case was peculiarly one for jury determination. The contention that defendant failed to prove any prior demand on plaintiffs for repayment of the proceeds of the first check is unavailing. A demand before suit is necessary only when the debtor must be put in default before the cause of action can arise. Where a present liability exists the suit itself is demand. Stephens v. Pittsburgh Plate Glass Co., 5 Cir., 36 F.2d 953; Texas Water Supply Co. v. Reconstruction Finance Corp., 5 Cir., 204 F.2d 190.
Ten reasons are assigned in support of the motion of the husband-plaintiff for a new trial. The first reason, that defendant ratified the agreement for the purchase of the stock and ratified the use of his checks, is devoid of merit. The evidence on the question of ratification was wholly oral and was submitted, with suitable instructions, to the jury which found no such ratification.
The second, third, fourth and fifth reasons are that the verdict was contrary to the law, the law and the evidence, the evidence, and the weight of the evidence. The verdict was one clearly within the scope of the law and the evidence adduced at the trial. The sixth, seventh, eighth and ninth reasons relate to the refusal of certain of the plaintiffs' points for charge. The charge of the trial judge adequately covered each of the points refused (pp. 413 to 420; p. 415; pp. 405, 406, 428-429). The tenth reason assigned is the refusal of the plaintiffs' point for binding instructions. In this case it was manifest that one side or the other was somewhat less than candid. It was the duty of the jury to reconcile the evidential conflicts to the extent that they were susceptible of reconciliation and, to the extent that they were irreconcilable, it was solely the jury's function to determine what was the truth.
Accordingly, the 26th day of March, 1956, it is ordered that (1) the motions of the husband-plaintiff for judgment and for new trial are dismissed; and (2) the motions of the plaintiffs as defendants in the counterclaim for judgment and for new trial are dismissed.
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