Courtney

Federal jurisdiction in this case is based solely on diversity of citizenship. The plaintiff-appellant, Howard M. Courtney, a resident of California, instituted an action against the defendants-appellees, the Custer County Bank (hereafter called “Bank”) and Oliver T. Davis, the cashier of the Bank, both residents of Idaho, in the United States District Court for the District of Idaho. Courtney complained that the defendants defrauded him of $10,000; and he brought suit to recover that amount plus punitive damages. The trial court directed a verdict for the defendants at the close of the presentation of the plaintiff’s case. Plaintiff appeals from that judgment.

On November 27, 1946, the Fourth of July Mining Company (hereafter called “Mining Company”) executed and delivered to the Bank a chattel mortgage on personal property to secure a loan in the amount of $7,500. Subsequently the Bank learned that certain property listed in the above described chattel mortgage did not belong to the mortgagor, i. e., the Mining Company. Thereupon, the Bank demanded immediate full payment on. its loan. To raise the needed money the Mining Company entered into negotiations with Courtney. Courtney…

(concurring).

I agree that the judgment here must be affirmed although I have a somewhat different view as to the reasons for the affirmance.

The facts disclose that Courtney, the appellant, received the shares of stock in the Mining Company at the same time that he received the copy of his mortgage from which he learned that certain property had been omitted from the mortgage. It is therefore clear, as the majority opinion suggests, that Courtney retained the shares of stock in the Mining Company after he learned of the omissions from the mortgage.

Now, upon the theory upon which Courtney prosecuted his appeal, this retention of the mining stock would bar his recovery, for that theory was that he was seeking the restitution of money which he had lost by reason of the fraud of the defendants.

At the time of the argument before us it was suggested that the appellant had mistaken his remedy, — that his remedy should have been an action by himself as principal against the Bank as his agent to recover under the rule which permits a principal, •to recover damages from his unfaithful agent.

If the action were viewed in that light, the retention of the stock by Courtney, while it…

198 F.2d 828 COURTNEY v. CUSTER COUNTY BANK et al. No. 13085. United States Court of Appeals Ninth Circuit. September 10, 1952. R. Don Bistline, Pocatello, Idaho, for appellant. O. R. Baum, Ruby Y. Brown, Pocatello, Idaho, for appellees. Before STEPHENS, ORR and POPE, Circuit Judges. STEPHENS, Circuit Judge. 1 Federal jurisdiction in this case is based solely on diversity of citizenship. The plaintiff-appellant, Howard M. Courtney, a resident of California, instituted an action against the defendants-appellees, the Custer County Bank (hereafter called "Bank") and Oliver T. Davis, the cashier of the Bank, both residents of Idaho, in the United States District Court for the District of Idaho. Courtney complained that the defendants defrauded him of $10,000; and he brought suit to recover that amount plus punitive damages. The trial court directed a verdict for the defendants at the close of the presentation of the plaintiff's case. Plaintiff appeals from that judgment. 2 On November 27, 1946, the Fourth of July Mining Company (hereafter called "Mining Company") executed and delivered to the Bank a chattel mortgage on personal property to secure a loan in the amount of $7,500.…