The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1910-08-28
Echo of Utah National Bank
Robbery in Supreme Court
Opinion.
JUDGMENT or LOWER
COURT is AFFIRMED
Chief Justice Straup, However,
Writes Dissenting Opinion
in Case.

According to the opinion Of the SUI:
preme court handed down Saturday, Jo
semi Nelson. former cashier Of the Utah
National bank will have to pay his note
for S13,250 given Mt tho time Of the
discovery of the theft Of $I06,250 from
the reserve fund of the bank in Jan
uary, 1908. At the time of the
theft, w. s. Mccormick and Nelson held
q consultation on the question Of MAX
ing good the reserve fund SO as to pro-
tect the bank from run and also to
place the reserve fund in legal con-
dition before the books could be ex-
amined by the national bank examiner
and the bank closed for failing to have
the required reserve On hand.
Mr.. Mccormick agreed to put up $50,
600 of the necessary money and Mr..
Nelson agreed to pay $l3,25o and gave
that amount payable in thirty days.
With the two amounts mentioned and
900 which could be transferred
from the surplus fund, the deficiency in
the reserve fund could be made up,
NCloOu ieluSSu lu pIJ Gue nOte wien 1C
became due and the bank filed suit
against him to recover the full amount
with interest at 6 per cent and also for
10 per cent as attorneys fees.
The case was tried before District
Judge Armstrong and Judgment was
rendered in favor of the bank for tie
full amount. In his defense Nelson
claimed that he had received no con.
sideration or service of value for the
money and hence should not be re-
quired to pay the note.
Opinion Of Court.
Justice McCarty, who wrote the opin.
ion of the supreme court, holds that,
lnasmuch as the payment of $4,000 by
Mccormick and $3.50 by Nelson saved
the bank from probable ruin and added
to the value Of the stock held by both
the president and cashier Of the banh
this constituted a consideration for the,
note given by Nelson. He also ex-
presses the opinion that the note itself
is prlma facie evidence that it has
been given for consideration JUS
tIce Mccarthy also holds that the $G3.-
$50 advanced by Mccormick and Mel.
son to cover up the theft was advanced
with the understanding that it should
be repaid to them by the bank only in
case the stolen money was recovered
or the stockholders voluntarily decided
to reimburse them.
Concerning Nelson g liability for tho
theft, Justice McCarty says that tho
condition on which Nelson executed the
note was that Of compromise for his
ilablllty to the bank for at least part
OF the money stolen and, "under the
great weight of authority the compro.
mise was sufficient consideration for
the note
Justice Prick Concurs
Justice J. E. Frick. in co6currinp,
says the amounts agreed to be paid by
McCornlck and Nelson were to be
part of the bank IS assets and, by the
payment. the bank 3 assests were made
good and they accomplished what they
intended to accomplished in prevent
ing the failure of the bank.
Chief Justice Straup, in dissenting,
says: Appellant urges that the ulti-
mate facts OF consideration was not
round, and that the evidence is insult
hclent to show q good or valuable con,
sideration. I think the appellant is en-
titled to prevail in both contentious"
calling attention to the fact that the
very thing on which Mccormick and
Nelson disagreed was the manner In
which their payments would be refund.
ed either when the $1O6,25O wus recoy-
cred or the stockholders OF the bank
were induced to make the $63,250 good.
he sand the payments were made sim
ply TO tide the bank over until tho
money was recovered or the stockhod-
ers could be called together to refund
he $63,250.
An the circumstances taken to.
gether are inconsistent with and pre-
.lude the idea of gift, and at least
Indicate that the payments were made
Nlth the understanding that they would
DC refunded''