Robinson, J.,
delivered the opinion of the Court.
The plaintiff below, a National Bank in Charlotte, North Carolina, desiring to increase its capital stock, and for that purpose to deposit with the proper department at Washington, $50,000 in United States bonds, employed Bayne & Co., of Baltimore, as its agent to procure and deliver them at Washington. Not having money to pay for them at the time, the plaintiff sent its president, Wilkes, to Baltimore, with a certificate previously prepared in Charlotte, as follows
‘ ‘ First National Bank of Charlotte, North Carolina.
“ Charlotte, December 15, 1865.
“Received on deposit from Bayne & Co., fifty-five thousand U. S. 5-20 bds. 3d issue, payable to the order of themselves, on return of this certificate.
“ John Wilkes,
“ Pres’t 1 st Nat. Bk. Charlotte, N. C.”
This certificate was delivered by Wilkes, president, to Bayne & Co., in Baltimore ; and on the 18th of December, 1865, Bayne & Co having endorsed the same, deposited it together with other securities, with the defendant below, a National Bank in Baltimore, as collateral security for a call loan of $80,000, then made by that bank to said firm of Bayne & Co.
[608]*608A few days after the delivery of said certificate, the plaintiff deposited in New York, to the credit of Bayne & Oo., a sum sufficient to pay the same, and received in January, 1866¿ verbal notice from Bayne & Co., that the certificate was discharged, and subject to the plaintiff’s order. In March, 1866, the plaintiff received a^ritten notice to the same effect, but it did not apply for its surrender. In April following, Bayne & Oo. failed, and the plaintiff was then notified by the defendant that it held the certificate of deposit for value, and demanded the delivery of the bonds therein mentioned.
Wilkes, the president, was sent by the plaintiff to Baltimore to negotiate for the return of said certificate. He informed the defendant that it had been satisfied by payment to Bayne & Co., and disavowed any legal liability on account of same to the defendant.
To avoid suit, however, Wilkes offered to pay $5,000 upon the delivery of the certificate, which the defendant refused, but offered to take $20,000, and threatened suit unless so settled. Wilkes declined to pay this sum, but asked for delay until he could return to Charlotte and consult his directors. He returned again to Baltimore, and new negotiations for compromise of the controversy existing between the two banks in regard to their respective rights to the certificate, were opened. Wilkes ascertained that the defendant held among its collaterals from Bayne & Oo., a large number of shares of Washington", Alexandria and Georgetown R. R. stocks, the market value of which had been seriously depressed by the failure of Bayne & Go. Having informed himself in regard to the condition of the stock and its supposed value, and after one or two interviews between him and the president and directors of the defendant, it was finally agreed, that the plaintiff should take 400 shares of the Washington Alexandria and Georgetown R. R. stock, 1,000 shares Maryland Anthracite stock, the same being valued [609]*609at $40,000, and 125 shares of the plaintiff’s own stock, valued at $15,000, the latter to be taken by Wilkes himself, inasmuch as he was advised that a National Bank could not buy its own stock, thus making $55,000. Upon the basis of this settlement, the defendant was to deliver up to Wilkes the certificate hold by it for the $55,000 U. S. bonds. The plaintiff paid to the defendant the sum of $40,000, according to the terms of the above settlement, and received the certificate for 1,000 shares Coal stock. The 400 shares of railroad stock were not then delivered, there being a suit about it at the time of the agreement, which prevented all transfers, but it was regarded and treated by both parties as belonging to the plaintiff.
In September, 1869, nearly three years after the date of the above settlement, this suit is brought by the plaintiff' to recover from the defendant the $40,000 paid by it in pursuance of the arrangement above stated. The case, by agreement was tried before the Court, and the plaintiff asked the granting of four propositions of law to govern the Court in deciding upon the facts.
The first proposition is to the effect, that if the plaintiff agreed to purchase for $40,000 the R. R. and Coal stock, and paid that sum, then the Court must find for the plaintiff for that amount, provided the Court shall further find that the defendant knew the plaintiff to be a National Bank, and although the Court shall further find that the certificate of deposit was delivered up in consequence of said contract; if by said contract no part of the $40,000 was to be paid for the certificate.
Second, that if the plaintiff agreed to purchase the' said stock for $40,000, and Wilkes also agreed to purchase for $15,000, 125 shares of plaintiff’s stock, and the inducement to both agreements was Wilkes’ desire to obtain the certificate of deposit, and he did so obtain it, that does not enure to make the first contract valid, provided the Court shall find that by the first mentioned [610]*610contract, the consideration for which the sum of $40,000 was to be paid, was the railroad'and coal stock, and that no part of said sum was to be paid for the certificate of deposit.
Third, that if the plaintiff, in order to compromise the certificate of deposit, agreed to purchase it and the railroad and coal stock for $40,000, and paid the money, then the plaintiff is entitled to recover so much of said sum as the Court shall find was paid for said stock.
Fourth, that-if there was an agreement for purchase, as stated in the third prayer, and it was executed, the effect of the letter of the defendant’s counsel of August 16th, 1869, was to waive all tender of what was received by the plaintiff under said purchase, and the plaintiff is entitled to recover back the $40,000, if the' Court shall find that the defendant was not prejudiced by the plaintiff’s delay to rescind the contract, and that the same was done in a reasonable time.
The plaintiff’s prayers embracing these propositions of law, were granted, but upon the facts the Court found a verdict for the defendant.
In the written opinion filed in the case, the Court admits the general proposition of law contended for by the plaintiff, that a National Bank has no power to purchase stocks either for speculation or investment, to be true, but says:
“ Instead of a purchase of stocks in the ordinary sense of that term, the Court finds the transaction between the parties to have been a fair and bona fide compromise of a case in which the plaintiff finding itself subject to a claim for $55,000, founded upon a transaction admitted in the argument to have been a legitimate banking transaction, thought it expedient to reduce an apprehended loss by a compromise, in which it acquired the stock in question. That a National Bank has a right under such circumstances to save itself from loss through the medium [611]
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Robinson, J.,
delivered the opinion of the Court.
The plaintiff below, a National Bank in Charlotte, North Carolina, desiring to increase its capital stock, and for that purpose to deposit with the proper department at Washington, $50,000 in United States bonds, employed Bayne & Co., of Baltimore, as its agent to procure and deliver them at Washington. Not having money to pay for them at the time, the plaintiff sent its president, Wilkes, to Baltimore, with a certificate previously prepared in Charlotte, as follows
‘ ‘ First National Bank of Charlotte, North Carolina.
“ Charlotte, December 15, 1865.
“Received on deposit from Bayne & Co., fifty-five thousand U. S. 5-20 bds. 3d issue, payable to the order of themselves, on return of this certificate.
“ John Wilkes,
“ Pres’t 1 st Nat. Bk. Charlotte, N. C.”
This certificate was delivered by Wilkes, president, to Bayne & Co., in Baltimore ; and on the 18th of December, 1865, Bayne & Co having endorsed the same, deposited it together with other securities, with the defendant below, a National Bank in Baltimore, as collateral security for a call loan of $80,000, then made by that bank to said firm of Bayne & Co.
[608]*608A few days after the delivery of said certificate, the plaintiff deposited in New York, to the credit of Bayne & Oo., a sum sufficient to pay the same, and received in January, 1866¿ verbal notice from Bayne & Co., that the certificate was discharged, and subject to the plaintiff’s order. In March, 1866, the plaintiff received a^ritten notice to the same effect, but it did not apply for its surrender. In April following, Bayne & Oo. failed, and the plaintiff was then notified by the defendant that it held the certificate of deposit for value, and demanded the delivery of the bonds therein mentioned.
Wilkes, the president, was sent by the plaintiff to Baltimore to negotiate for the return of said certificate. He informed the defendant that it had been satisfied by payment to Bayne & Co., and disavowed any legal liability on account of same to the defendant.
To avoid suit, however, Wilkes offered to pay $5,000 upon the delivery of the certificate, which the defendant refused, but offered to take $20,000, and threatened suit unless so settled. Wilkes declined to pay this sum, but asked for delay until he could return to Charlotte and consult his directors. He returned again to Baltimore, and new negotiations for compromise of the controversy existing between the two banks in regard to their respective rights to the certificate, were opened. Wilkes ascertained that the defendant held among its collaterals from Bayne & Oo., a large number of shares of Washington", Alexandria and Georgetown R. R. stocks, the market value of which had been seriously depressed by the failure of Bayne & Go. Having informed himself in regard to the condition of the stock and its supposed value, and after one or two interviews between him and the president and directors of the defendant, it was finally agreed, that the plaintiff should take 400 shares of the Washington Alexandria and Georgetown R. R. stock, 1,000 shares Maryland Anthracite stock, the same being valued [609]*609at $40,000, and 125 shares of the plaintiff’s own stock, valued at $15,000, the latter to be taken by Wilkes himself, inasmuch as he was advised that a National Bank could not buy its own stock, thus making $55,000. Upon the basis of this settlement, the defendant was to deliver up to Wilkes the certificate hold by it for the $55,000 U. S. bonds. The plaintiff paid to the defendant the sum of $40,000, according to the terms of the above settlement, and received the certificate for 1,000 shares Coal stock. The 400 shares of railroad stock were not then delivered, there being a suit about it at the time of the agreement, which prevented all transfers, but it was regarded and treated by both parties as belonging to the plaintiff.
In September, 1869, nearly three years after the date of the above settlement, this suit is brought by the plaintiff' to recover from the defendant the $40,000 paid by it in pursuance of the arrangement above stated. The case, by agreement was tried before the Court, and the plaintiff asked the granting of four propositions of law to govern the Court in deciding upon the facts.
The first proposition is to the effect, that if the plaintiff agreed to purchase for $40,000 the R. R. and Coal stock, and paid that sum, then the Court must find for the plaintiff for that amount, provided the Court shall further find that the defendant knew the plaintiff to be a National Bank, and although the Court shall further find that the certificate of deposit was delivered up in consequence of said contract; if by said contract no part of the $40,000 was to be paid for the certificate.
Second, that if the plaintiff agreed to purchase the' said stock for $40,000, and Wilkes also agreed to purchase for $15,000, 125 shares of plaintiff’s stock, and the inducement to both agreements was Wilkes’ desire to obtain the certificate of deposit, and he did so obtain it, that does not enure to make the first contract valid, provided the Court shall find that by the first mentioned [610]*610contract, the consideration for which the sum of $40,000 was to be paid, was the railroad'and coal stock, and that no part of said sum was to be paid for the certificate of deposit.
Third, that if the plaintiff, in order to compromise the certificate of deposit, agreed to purchase it and the railroad and coal stock for $40,000, and paid the money, then the plaintiff is entitled to recover so much of said sum as the Court shall find was paid for said stock.
Fourth, that-if there was an agreement for purchase, as stated in the third prayer, and it was executed, the effect of the letter of the defendant’s counsel of August 16th, 1869, was to waive all tender of what was received by the plaintiff under said purchase, and the plaintiff is entitled to recover back the $40,000, if the' Court shall find that the defendant was not prejudiced by the plaintiff’s delay to rescind the contract, and that the same was done in a reasonable time.
The plaintiff’s prayers embracing these propositions of law, were granted, but upon the facts the Court found a verdict for the defendant.
In the written opinion filed in the case, the Court admits the general proposition of law contended for by the plaintiff, that a National Bank has no power to purchase stocks either for speculation or investment, to be true, but says:
“ Instead of a purchase of stocks in the ordinary sense of that term, the Court finds the transaction between the parties to have been a fair and bona fide compromise of a case in which the plaintiff finding itself subject to a claim for $55,000, founded upon a transaction admitted in the argument to have been a legitimate banking transaction, thought it expedient to reduce an apprehended loss by a compromise, in which it acquired the stock in question. That a National Bank has a right under such circumstances to save itself from loss through the medium [611]*611of an arrangement by which it shall receive stock to be again turned into money to avert or diminish an apprehended loss, and not for investment or speculation, the Court does not doubt, and believing from the evidence this to have been such a transactions it now enters a verdict for the defendant, and order a judgment to be entered thereon according to the course of the Court.”
To the opinion and order of the Court, and to its action in the premises the plaintiff excepted.
It is contended in support of this exception that the Judge after stating his conclusion upon the facts, decided as matter of law that a National Bank under such circumstances, had the right to receive stocks to be again turned into money, to save itself from an apprehended loss, and that this Court has the right in all cases tried before a Judge without the intervention of a jury, to review any proposition of law which appears from the opinion of the Judge to have been decided below, and which may have influenced him in the rendition of the verdict. Conceding this view to be correct, for the purpose of this case, without however so .deciding, we concur with the Court below in regard to the proposition of law thus announced. If, instead of purchasing the stocks in question for speculation or as an investment, the plaintiff acquired them by way of a compromise of a claim of $55,000, alleged to be due the defendant, and for the purpose of averting an apprehended loss on account of said claim, there is nothing either in the letter or spirit of the Banking Act to prevent under such circumstances a transfer of the stocks to the plaintiff. Whether a National Bank can take a mortgage on real estate to secure the payment of future loans is a question which does not arise in this case, and in regard to which we express no opinion. Fowler, et al. vs. J. D. Scully, in trust for the First National Bank of Pittsburgh, Pittsburgh Legal Journal, January 22nd, 1873.
[612]*612(Decided 3rd March, 1874.)
It appears from the statement of the Court, that it had been led to suppose from the submission of the case after argument on the law and the facts by both parties, that the plaintiff’s attorney had waived their right to have the' plaintiff called before the verdict was entered, and being' informed by them after the decision of the case and entry of verdict and judgment, that they did not waive but claimed that right, the Court struck out the entry of verdict and judgment, in order to give them an opportunity to non pros, the case. The plaintiff, however, when called answered, and thus refused to have a non pros, entered, whereupon the Court entered the verdict and judgment thereupon as before. To the striking out of the verdict, and the judgment, under the circumstances, and to the refusal by the Court to grant a new trial, and to the entry of the verdict and the judgment anew, the plaintiff excepted.
We see no just ground of complaint on the part of the plaintiff tj the action of the Court in the premises. The verdict and judgment were stricken out, because the plaintiff had complained that they had been denied the right of having a non pros, entered in the case, and when the opportunity was offered them, they refused to avail themselves of the privilege, and answered to the call of the case. By this procedure on the part of the Court, no injustice was done to the plaintiff. It had not the right of having a nonpros, entered, but the privilege of exercising this right, with full Tcnoiuledge of what the verdict would he. Entertaining these views the judgment below will be affirmed.
Judgment affirmed.