The opinion
THAYER, Circuit Judge
(concurring). There was ample testimony in this case to warrant a jury in finding that the Hanover National Bank placed the amount of the Sheldon note — i. e. the sum of §5,000 — to the credit of the First National Bank of Burlingame, Kan., on its books, with the understanding that the money was obtained for the use of the latter bank, and not for the use of Sheldon, and upon the further understanding and agreement that when the note matured according to its terms the amount thereof might he charged against the account of the Kansas hank with the Hanover National Bank, as was in fact done when the paper matured. The evidence as respects the party to whom (he loan was made, whether to Sheldon or to the First National Bank of Burlingame, Kan., of which he was the president, and the evidence as respects the agreement that the amount of the loan should be charged to the Kansas bank when it matured, was clearly of such a nature that these issues should have been submitted to the jury. And if the jury had found, in accordance with the contention of the plaintiff bank, that the loan was made to the Kansas bank, and not to Sheldon. then, so far as the plaintiff hank was concerned, the Kansas bank was the principal debtor, and Sheldon, who had executed his note for the loan, was merely a surety for its repayment.
It is said, however, that the action of the trial court in withdraw; ing the case from the jury may he sustained because the (plaintiff bank was advised before it made the loan that the defendant hank did not intend to enter the loan on its books either in the form of rediscounted paper or as a part of its hills payable, and that, having knowledge of this fact when it made the loan, it should not he allowed to recover. It is to be observed, however, that the plaintiff hank neither directed, requested, nor stipulated that the loan, when *428 made, should be entered on the books of the defendant bank in any particular manner, of that no entry thereof should be made. The information in question was communicated to the plaintiff bank by Sheldon simply as an explanation of his desire to give his own note as an evidence of the debt, rather than the note of the defendant bank. The plaintiff bank was not advised that the borrower intended to make an unlawful use of the money which it desired to obtain; neither had it any power to prescribe the manner in which the borrower should make a record of the indebtedness on its own books. It follows, therefore, that the money in question was not loaned by the New York bank to the Kansas bank in consideration for the doing of any unlawful or immoral act by the latter bank, of in consideration of its promise to do any such act. The money was loaned solely in consequence of the defendant’s promise to repay it, and this promise to repay, which the present action is brought to enforce, is not founded either in whole or in part upon an illegal or an immoral consideration. Such being the situation, no reason is perceived why the promise may not be enforced in a court of justice. Neither can if be said that by loaning the money under the circumstances aforesaid, which was an act in itself entirely lawful, the plaintiff bank became either an aider, abettor, or an accessory to any crime committed by any officer or officers of the defendant bank, since the latter were not the plaintiff’s agents in making a record of the loan on the books of the defendant bank; nor were such officers bound to comply with any directions of the plaintiff with reference to the making of such an entry, even if such directions had been given. It was undoubtedly the duty of the officers of the defendant bank to make a proper record of the loan on its books of account, but, if they violated that duty, they did so of their own volition. The plaintiff bank did not request, direct, or stipulate that any false or misleading entry should be made. Under these circumstances there is no rule of law which, when properly applied, will prevent the plaintiff bank from recovering. It would be carrying the doctrine which is invoked by the defendant wholly too far to say that one who loans money to another cannot recover it if he receives an intimation at the time of making the loan that the borrower will perhaps make an unlawful use of the whole or a part of the sum borrowed, or that he will not make such an entry of the loan on his own books as he ought to make. It has been held that, where an illegal contract has been executed by the parties thereto, the money or thing which issued out of the illegal transaction, and is in the hands of, one wrongdoer, may form a legal consideration between the parties for a promise, express or implied, to pay the same, or a part thereof, to the other, and that the court will not unravel the transaction to discover the origin of the fund. Planters’ Bank v. Union Bank, 16 Wall. 483, 499, 500 , 21 L. Ed. 473 ; Brooks v. Martin, 2 Wall. 70 , 17 L. Ed. 732 . If this be so, and if money which has been realized in an unlawful transaction may be recovered by one wrongdoer from another upon an implied promise, after the unlawful transaction has been consummated, I can perceive no sufficient reason for denying the plaintiff’s right *429 to recover in the case at bar, although it did have knowledge that the defendant hank did not intend to make such an entry of the loan upon its books as it ought to have made. For these reasons I concur in the reversal of the judgment.