# Petition for Writ of Certiorari — Fore v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0521%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 381 U.S. 912 ## Text —_—— Ofte.S:nreme Court, U.S, i ‘ . a eens: MAR 12 1965 JOHN FT DAVis CLERK In the SUPREME COURT OF THE UNITED STATES OCTOBER TERM. 1964 we OTR B. RAY ROBB'NS CO., INC., PETITIONER Vv. VALLEY NATIONAL BANK OF ARIZONA PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALBERT SIDNEY JOHNSTON, JR.. Suite 3-5 Schwan Building, Biloxi, Mississippi, Counsel fo: Petitioner A. S. JOHNSTON ITI, ESQ., Suite 3-5 Schwan Building, Biloxi, Mississippi. Oz Counse: INDEX Page Opinions Below 2 Jurisdiction ! Mp bg ‘a Questions Presented 2 Statement of the Case 3 Reasons for Granting the Writ ag Conclusion... ; Pe oid watts Get cos ee tat caztiad 15 Appendix A—ninion Below ... ee ee ee 16 Appendix B—Jucgment Below. ......--- ; . 21 Apvendix C—Order Denying Petition for Rehearing ...—-_-22 TABLE OF CASES Page Appell v. Fiore, 244 F.2d 706, C.A. 5, 1957 .. Pet ee oe 7 Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301, 58 S.Ct. 715, 70 Led P40)... . «2 ee cinta. 6 Bank of America National Trust & Savings Association v. Merchandise National Bank, 201 F.2d 68,C.A.9,1952... 10 Bayne V. United States, 93 U.S. 642, 23 L.ed.907........... 6 Booth Fisheries Corp. v. Coe, 114 F.2d 462, 72 App. D.C. 195, cert den 311 U.S. 691, 61 S.Ct. 72, 85 L.ed. ee eae cee Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.ed. 1421, reversing 6 F.Supp. 141, cert granted 294 U.S. 704, 55 S.Ct. 544, 79 L.ed.1239........... ihe Cary v. Curtis, 44 U.S. 236, 3 How. 236, 11 L.ed. 576 .. 6 i Citie.. Service Oil Co. v. Adair, 273 F.2d 673, C.A. 10, 1960 11 C.LR. v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190 12 Copper Be'le Min. Co. v. Gleeson, 14 Ariz.548, 134 P. 285 10 Deisch v. Wooten-Agee Co., 95 Ark. 279, 129 S.W. 819. 7,9 Espy v. Bank of Cincinnati, 18 Wall. 604, 21 L.ed 947 . 6 Firestone Tire and Rubber Co. ‘v. Central National Bank, 159 Ohio St. 423, 112 N.E.2d 636 VARESE oT First State Bank & Trust Co. v. First National Bank, 314 Il. 259, 145 N.E. 382 7,8 Gulf Oil Corporation v. Lone Star Producing Co., +322 F.2d 28, °*.A. 5, 1963 . Henson v. Lamb, 120 W.Va. 552, 199 S.E. 459 . Lawrence Warehouse Co. v. es 224 F.2d 493, C.A. 8, 1955 ee Matarese V. Moore-McCormack Lines, 158 F.2d 631 C.A. 2, 1946 ey x ; 7,8 McDonald v. Robertson, 104 F.2d 945, C.A. 6, 1939 . par ae National Bank of California v. Miner, 167 Cal. 532, 140 P. 27 ener: Oil Screw Nogah’s Ark v. Benley & & Felton _— 332 F.2d 3, C.A. 5, 1963 . ges 12 Pullman’s Palace-Car Co. v. Central Transporation Co., 171 U.S. 138, 18 S.Ct. 808 . ae 6 Smith v. Pacific Mut. Life Ins. Co., 192 F.2d 248 C.A. 6, 1951 ; ge EE emery ange AH eyes AS Cy ae ga 1l Squibb & Sons v. Chemical Foundation, Inc., 93 F.2d 475, oF & 3 see Ft ein NNN Let a1 7 Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.ed. 1265 . 6 Taylor v. Merrill, 104 F.2d 710,C.A.9,1939....... ... 10 Thompson v. Sioux Falls National Bank, 150 U.S. 231, 14 S.Ct. 94, 37 L.ed. 1063 . A rs OT OPO E AE 6 United States v. American Packing & Provision Co., 122 F.2d 445, cert den 314 U.S. 694, 62 S.Ct. 364, 86 L.ed. 555 Hii SERRA OPE GG es CIR a 7 ii W. E. Richmond & Co. v. Security National Bank, 16 Tenn. App. 414, 64 S.W.2d 863 . 7,10 Westgate v. Maryland Cas. Co., 147 F.2d 177, C.A. 6, 1945 7,8 W. R. B. Corporation v. Geer, 313 F.2d 750, C.A. 5, 1963 13 STATUTES 28 U.S. Code Sec. 1254(1) 2 OTHER AUTHORITIES 40 ALR2d 997 . i ho ili In the SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1964 B. RAY ROBBINS CO., INC., PETITIONER v. VALLEY NATIONAL BANK OF ARIZONA PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Petitioner prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit, entered in the above-entitled cause on December 9, 1964, denying petitioner’s claim to money received by respond- ent bank from petitioner to purchase time certificates of de- posit for customers of petitioner, and used by respondent through mistake on the part of the respondent as security fora loan made to a customer of the said respondent bank. OPINIONS BELOW The opinion of the Court of Appeals entered October 29, 1964, is reported in 338 F2d 467. There was no formal opinion of the District Court. Timely petition for rehearing was denied December 9, 1964. JURISDICTION This Court’s jurisdiction is invoked under 28 U. S. Code Section 1254 (1). QUESTIONS PRESENTED 1. Whether a party in New York who transmits money through banking channels for the purchase of time certificai 2s of deposit to be issued by receiving bank in Arizona may re- cover such money shown to have been wrongfully used by the receiving bank as collateral security for loan to bank’s cust- omer. 2. Whether a party who has paid money to another through mistake of fact and who does not obtain what was expected in return is entitled to restitution from the other in an action for money had and received. 3. Whether a bank which has received money by mistzke and made a loan to it’s customer on the unauthorized assumption that said money was collateral for its loan, is liable to repay said money upon receipt of timely notice: of the mistake when said bank can recover the money by charging the account of its customer, and reversing bookkeeping entries. 4. Whether the circumstances attending respondent’s assert- ed change of positior are such as to render it inequitable to require it to make restitution to petitioner. 5. Whether there was any evidence tending to prove the as- serted chenge of position by respondent bank was detrimental to it; that such change, if any, was material, anc finally, that such change, if any, was irrevocable. 2 6. Whether the recipient of such money paid by mistake may hold on to said money, in an action for money had and received, by simply claiming it had no duty to recognize the payor of such money, notwithstanding timely notice to it whereupon nothing whatever was done, and no >ffort made to determine the truthfulness of the claim of petitioner. 7. Whether respondent met, by the evidence in the record, the burden imposed upon it under its affirmative defense of change of position to show that it was inequitable to compel respondent to make restitution to petitioner. 8. Whether respondent bank could be placed in statu quo by debiting the account of its customer, the amount of his over- draft claimed to have been paia by proceeds of a loan financed by use of petitioner’; money, forwarded to respondent bank for the purchase of time certificates of deposit, and rescinding said loan and seizing or freezing, or otherwise impounding the balance remaining to the account of the bank’s customer at the time of receipt of written nctice of the claim: of respoud- ent, not only tending to demonstrate but actually proving, the payment by petit.oner to said respondent bank by mistake. 9. Whether respondent bank may keep petitioners $30,000 by merely claiming it had no duty to investigate the subject mat- ter of petitioner’s letter-notice received by the former seven days after receipt of petitioner’s money, in the action by peti- tioner to recover money received by respondent without con- sideration, and used by respondent for a purpose foreign and contrary to the expressed intention of petitioner. STATEMENT OF THE CASE ‘this diversity action was brought by petitioner to recover a »v0,000.00 deposit made with respondent bank for one purpose, but used by said bank for a contrary purpose (Complaint). On August 23, 1960, petitioner deposited $30,000.90 with the Bank of New York for transmittal to respondent in Arizona 3 (Exhibit 4, p.11, R.57; Exhibit 4B, R.86)'. The deposit was made to purchase time certificates of deposit from respondent bank; a letter was written the same dav notifying the bank of the de- posit and instructing it how the money was to be used (Exhibit 1, R.11, 14). Petitioner requested respondent bank to issue certificates of deposit to designated payees and return them to petitioner in New York. These certificates were to be issued, “free from all encumbrances of any kind whatsoever and not to be considered as collateral or security for any loan now or hereafter made by the bank,” quoting from petitioner’s August 23, 1960, letter (Ex- hibit 1, R.11, 14). Petitioner wrote respondent bank again on September 1, 1960, concerning the same transaction (Exhibit 2, R.12, 14). Hearing nothing in response to its letters petitioner telephoned respondent on September 12, 1960, inquiring further about the deposit. At this time petitioner was told that the bank em- ployee handling the transaction was sick and no one was on hand who could answer petitioner’s questions. The party tak- ing the call at the bank advised petitioner to call later in the week (Exhibit 4, p.17, R.57). Petitioner telephoned respondent on September 16, 1960, only to learn that the bank employee was still sick and had not returned to work, arid that no one was available who could give any information concerning peti- tioner’s money (Exhibit 4, p.18, R.57). Failing in all its attempts to obtain the $30,000.00 or the certi- ficates of deposit, petitioner filed suit in the District Court of Arizona tc recover the money deposited for one purpose, but used by respondent bank for a contrary purpose (Complaint). Respondent bank defended on the grounds it had no agree- ment with petitioner concerning the deposit, and that prior to receipt of petitioner’s letter of instructions respondent had changed its position to its detriment by making a loan to one of its customers, using petitioner’s money as collateral (An- swer). , 1. Appeal is on “original papers; script references are to Reporter’s Tran- Within a few months after suit was filed against both re- spondent and the customer, the cutomer was adjudged a bank- rupt, and the cause proceeded to trial against respondent alone (R.4). On the trial the evidence showed that respondent’s customer owed respondent some $68,900.00 in unsecured Irans at the time _‘ this transaction, $18,000.00 of which was in the form of an overdraft in his business account (R.50, 52, 65), and that the ioan proceeds were used to clear the overdraft and leave a credit balance of $12,000.00 (Exhibit 3, R.65, 66). When respond- ent received petitioner's letter of August 23, 1960, the status of this account remained the same as it had been immediately after the loan was made: the overdraft had been cleared, and there remained a credit balance of $12,000.00 (Exhibit 3, R.51, 52, 118). No action was taken by respondent bank upon receipt of petitioner’s letter (R.43, 44, 56, 57). No attempt was made to determine the customer’s right to use petitioner’s money as collateral (R. 106), or tc freeze the customer’s account to pre- vent his use of the $12,000.00 remaining therein (Frhibit 3, R. 51, 52). Nothing was done to cancel the loan as made or to re- verse the bookkeeping entries so as to debit the customer’s ac- count the amount of the overdraft. (Exhibit 3, R.51, 52, 118-121, 127). Respondent argued at the trial that petitioner’s claim to the deposit should be defeated on two grounds: (1) there was no showing of timely delivery of the instructions; and £2) respond- ent had no duty to recognize petitioner’s claim to the money (R. 91). The District Court denied relief to petitioner and on appeal this decision was affirmed. The Court of Appeals for the Ninth Circuit held that the findirgs of the trial judge were supported hy substantial evidence, were not clearly or at all erronéous, and since respondent bank had changed its position by making the loan to its customer before petitioner’s letter reache:. the bank, it was under no duty to act when the letter arrived. 5 REASONS FOR GRANTING THE WRIT if The decision of the Ninth Circuit is patently and squarely in conflict with this Court’s decisions in Espy v. Bank of Cincin- nati, 18 Wall. 604, 21 L.ed. 947; and Pullman’s Palace-Car Co. v. Central Transporation Co., 171 U. S. 138, 18 S.Ct. 808; and Thompson et al. v. Sioux Falls National Bank, 150 U. S. 231, 14 S.Ct. 94, 37 L.ed. 1063. See also the following cases of this court directly in point, viz: Bull v. United States, 295 U. S. 247, 55 S.Ct. 695, 79 L.ed. 1421, reversing 6 F.Supp. 141, cert granted 294 U. S. 704, 55 S.Ct. 544, 79 L.ed 1239; Atlantic Coast Line R. Co. v. State of Florida, 295 U. S. 301, 55 S.Ct. 713, 79 L.ec. 1451, reversing 11 F.Supp. 36; Bayne v. United States, 93 U. S. 642, 23 L.ed. 997, holding assumpsit will lie whenever the defendant has received money which is the property of the plaintiff and which the defendant is obliged by natural justice and equity to refund; Stone v. White, 301 U. S. 532, 57 S.Ct. 851, 81 L.ed. 1265; Cary v. Curtis, 44 U. S. 236, 3 How. 236, 11 L.ed. 576. In Espy v. Bank uf Cincinnati at 21 Led. 949, the Court said: “The principle that money so paid under a mistake of the facts of the case can be recovered back is weli settled * * *.” Pullman’s Palace-Car Co. v. Central Transporation Co., supra, involved an illegal contract between the parties. The Court awarded judgmert in favor of the Central Transporation Com- pany for a reduced amount, and held that courts, while refus- ing to allow actions upon unlawful contracts, always strive to do justice between parties and permit property or money part- ed with cn the faith of unlawful contracts to be recovered and that in such cases the action is not maintained upon the un- lawful contzact but upon an implied contract of the defendant to return o> make compensation for, the property or money which it had no right to retain. In the Thompson et al. v. Sioux Falls National Bank case, supra, at page 99, 14 S. Ct. Reporter, this Court said: 6 “While it is true tne plaintiff bank credited the bondsmen with the amount of the check on its receipt, it parted with nothing uron the faith of it until nearly a week thereafter. If it fad cancelled the check on the evening of tne 13th, as it was requested to do, it would have done no more than the law required of it. The mere credit “i 4 check upon the books of a bank, which may be cancelled at anytime, does not make the bank a bona fide purchaser for value. if after such credit, and before payment for value upon the faith thereof, the hoider receives notice of the invalidity of the check, he cannot become a bona fide holder by subse- quent payment.” citing Dresser v. Construction Co., 93 U. S. 92; and state court cases. In the case at bar respondent has the duty to pay back peti- tioner’s money on the basis of an imp]'7d contract to return that which it had no right to use in the first place, and now has no right to retain. II The decision of the Court of Appeals for the Ninth Circuit is in conflict with decisions of the Second Circuit in Matarese v. Moore-McCormack Lines, 158 F.2d 631, and Squibb & Sons v. Chemicai Foundation, Inc., 93 F.2d 475; the Fifth Circuit in Ap- pell v. Fiore, 244 F.2d 706, and Gulf Oil Corporation v. Lone Star Producing Co., 322 F.2d 28; the Sixth Circuit in Westgate v. Maryland Cas. Co., 147 F.2d 177; the Eighth Circuit in Law- rence Warehouse Co. v. Twohig, 224 F.2d. 493; the Tenth Cir- cuit in United States v. American Packing & Provision Co., 122 F.2d 445, cert den, 314 U. S. 694, 62 S.Ct. 364, 86 L.ed 555. This decision is also in conflict with the following state court cases: Deisch v. Wooten-Agee Co., 95 Ark. 279, 129 S.W. 819; National Bank v. Miner, 167 Cal. 532, 140 P. 27; Firestone Tire and Rubber Co. v. Central National Bank, 159 Ohio St. 423, 112 N.E.2d 636; and W. E. Richmond & Co. v. Security National Bank, 16 Tenr. App. 414, 64 S.W.2d 863, collected in the An- notation in 40 ALR2d 997; and First State Bank & Trust Co. v. 7 First National Bank, 314 Ill. 269, 145 N.E. 382; Henson v. Lamb, 120 W.Va. 552, 199 S.E. 459. In each of the cited cases, the courts dealt with factual situa- tions analogous to petitioner’s case. In Matarese v. Moore-McCormack Lines, supra, 158 F.2d 631, the Second Circuit declared that the doctrine of unjust enrich- ment or recovery in quasi-contract obviously does not deal with situations in which the party to be charged has by word or deed legally consented to assume a duty ioward the party seek- ing to charge him, and said: “Instead, it applies to situations where as a matter of fact there is no legal contract, but where the person sought to be charged is in possession of money or prop- erty which in good conscience and justice he should not retain, but should deliver to another,” citing cases, and holding that: “Where this is true the courts impose a duty to re- fund the money or the use value of the property to the person to whom in good conscience it ought to belong.” (citing Restatement, Restitution, Sec. 1(a); and Pull- man’s Palace-Car Co. v. Central Transporation Co., 171 U. S. 138, 152, 18 S.Ct.808, 43 L.ed. 108). All ot the cited cases squarely hold that money paid under a mistake of fact can be recovered. The right to recover in these cases is based upon equitable principles; the plaintiff is merely required to show that money was obtained under such circum- stances as in equity and good conscience it should be returned. The Sixth Circuit in Westgate v. Maryland Casualty Co., supra, 147 F.2d 177, 180, said: “Unjust enrichment as a cause of action falls under indebitatus assumpsit. It is grounded on the equitable principle that one who has been unjustly enriched at the expense of another is requ’red to make restitution.” 8 Lawrence Warehouse Company v. Twohig, supra, 224 F.2d 493, 498, was an action for restitution. Here the Eighth Cir- cuit said: “The term ‘benefit’, for purposes of restitution, de- notes any form of advantage received, which is capable of having its value measured, ar. i’. accordingly in- cludes the advantage of being saved from an expense. or loss. Restatment, Restitution, Sec. 1, Comment b. Any benefit received by one person as against another is entitled to be regarded as an unjust enrichment, ‘if the circumstances of its receipt or retention are such that as between the two persons, it is unjust for him to run i In National Bank of California v. Miner, 167 Cal. 532, 140 P. 27, the bank argued it had changed its position and parted with value when it credited its customer’s account with the deposit of a cashier’s check obtained as a result of a mistake on the part of another bank. The court pierced this argument in the following manner: “(A)11 that (the bank) did, after the receipt of the check and within the hour before its notification of the mistake, was to credit the amount of the check upon the overdue note of (its customer) which it held. = & * It was the mere bookkeeper’s stroke of the pen where- by (the customer’s) commercial account was lessened by the transfer of a credit upon his promissory note. * * * The entries which it thus made were all subject to its control and could be changed without injury or detriment to it to comport and comply with the truth.” The court concluded that the bank parted with no value and changed its position only by a stroke of the pen, which another stroke could restore (citing Thompson v. Sioux Falls National Bank. 150 U. S. 231, 14S Ct. 94, 37 L.ed. 1063, and other cases). Desich v. Wooten-Agee Co., 95 Ark. 279, 129 S.W. 819, was an 9 action to recover a payment made in error. The court held that crediting the payment on an account of the payee was not a prejudicial change of position: “It is only when the payee has changed his position to his prejudice because thereof and cannot be put in statu quo by the payor that money paid under a mis- take of fact cannot be recovered.” : To \« same effect see W. E. Richmond & Co. v. Security National Bank of Jackson, 16 Tenn. App. 414, 64 S.W.2d 863; and Firestone ‘Tire & Rubber Co. v. Central National Bank, 159 Ohio St. 423, 112 N.E.2d 636 In Bank of America National Trust & Savings Assn. v. Mer- chandise National Bank, 201 F.2d. 68, C.A. 9, 1952, where de- fendant bank allowed its depositor to overdraw his account, ii later received from plaintiff an advice of credit with respect to checks collected for depositor, credited the account and re- duced the overdraft, the bank’s bookkeeping entries, while constituting a change of position, were held not a change to the detriment of the defendant. The Court cited in support of this proposition National Bank of California v. Miner, 167 Cal. 532, 140 P. 27, supra. Ill The judgment of the Court of Appeals :s at variance with, and contrary to, Arizona law, as announced in Taylor v. Merrill, 104 F.2d 710, C.A. 9, 1939, cert den 308 U.S. 593, 60 S.Ct. 122, 84 Led, 496; and Copper Belle Min. Co. v. Gleeson, 14 Ariz. 548, 134 P 285. In Copper Belle Min. Co. v. Gieeson, supra, the Arizona Su- preme Court said: “Assumpsit for money had and received is of an equitable character, and it may in general be maintain- ed by any legal evidence showing that the defendant has received or obtained possession of money of the plaintiff which in equity and good conscience he ought to pay over to the plaintiff (citing cases).” 10 ~— To reconcile the opinion of the Ninth Circuit in the instant case against petitioner, it is necessary to read into the record evidence of change of position to the detriment of respondent, contrary to the indisputable and uncontradicted facts of the case. The uncontradicted evidence shows respondent had know- ledge of facts which placed it in a position where it was en- abled to enrich itself unjustly at the expense of petitioner. Possessed of both notice and knowledge, respondent chose to do nothing. Respondent.is charged before this Court with knowledge of all it could have discovered as a result of notice ‘from petitioner, ‘including the fact that Robbins’ $30,000.00 was not intended to collateralize its customer’s note but was to pur- chase time certificates of deposit to ‘be returned to petitioner in New York. On the question of notice, the decision of the Ninth Circuit is contrary to the following cases: Booth Fisheries Corp. v. Coe, 114 F.2d 462, 72 App. D. C. 195, cer den 311 U. Ss. 691, 61 S.Ct. 72, 5 L.ed. 447; Cities Service Oil Co. v. Adair, 273 F.2d 673, C.A. 10, 1960; Smith v. Pacific Mut. Life Ins. Co., 192 F.2d 242, C.A. 6, 1951; McDonald v. Robertson, 104 F.2d 945, C.A. 6, 1939. IV The District Court made no finding concerning the failure of respondent to investigate the subject-matter of the letter- notice of August 23, 1960, that respondent ignored repeated telephone calls from petitioner to inquire about its money and the requested certificates of deposits. Petitioner proved the transmittal of the money.and receipt by respondent. It proved the purpose and intended use of such money. Without findings concerning these matters the effect and duty of respondent bank to investigate the matter, and the “actual knowledge” with which such bank is charged under the law by this timely “notice” the judgment of the Court of Appeals is not put upon a basis adequate to support it. Likewise the District Court ignored, and made no finding on the effect of respondent bank’s use of the money to discharge its customer’s overdraft at respondent bank, and the effect, if any, such bookkeeping entry had on the right of petitioner to re- 11 cover all, or at least part, of its money. No finding was made on the obligation and duty imposed on respondent bar:k to “freeze” and otherwise seize and impound, and prevent the use of, the balance remaining in the customer’s account at the time and on the date respondent had, and is charged with, “actual” knowledge of the true facts of petitioner's case, that it forward- ed $30,000.00 to respondent to purchase certificates of deposit. With these suggested additional findings, unquestionably sustained by the uncontradicted evidence in the record, as for example the ietter-netice of August 23, 1960, the follow-up letter of September 1, 1960, and the telephone calis to respond- ent bank by petitioner, the conclusions of law necessarily to follow would strongly argue for, if not dictate, a judgment in favor of petitioner Robbins. At least, in the exercise of its supervisory jurisdictior. this Court should rernand this cause for further findings. As said by this Court, inC. I. R.v. Duberstein, 363 U. S. 278,80 S.Ct. 1190, 1199, 1200 (1960) on page 1200, 80 S.Ct. Rep., “A finding is ‘clearly erroneous’ when aithough there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U. S. 364, 395, 68 S.Ct. 525, 542, 92 Led wert? The opinion of the Ninth Circuit obviously overlooks these matters, and its holding that the findings of fact of the district court are supportea by substantial evidence and are not clearly or at all erroneous and that the court’s conclusions of law there- from are proper,” is without support in the record, and is con- trary to the overwhelming weight of the evidence, and the indisputable character of the evidence. Adopting the language of Circuit Judge John R. Brown, of the Fifth Circuit, in Oil Screw Noah’s Ark v. Bentley & Felton Corp., 322 F.2d 3 (1963), at pages 5 and 6, we urge upon the Court the position that in this cause “(t)here is still the quali- 12 ~ tative factor of the truth and right of the case, the impression that a fundamentally wrong result has been reachec,” and refer to W. R. B. Corporation v. Geer, 313 F.2d 750, 753 (1963), where the same scholarly judge again dealt with a similar problem, i.e., the right and duty of courts of appeal of the United States to review findings of district courts, and said: “In view of this we cannot indulge any assumption that the Judge was using ‘substantial evidence’ as the equiva- lent of ‘clearly erroneous.’ To pass that test the evidence must, of course, be substantial. But unlike the Judge’s function in passing on the sufficiency of the evidence in a jury case, it does not end there. As does the appellate Court in reviewing like findings of a District Court, the clearly erroneous concept of F.R. Civ. P. —2 (a) requires findings to be set aside if the Court is left with the im- pression that the result is not the truth and right of the case. In this sense, at least, the two terms are not synony- mous, an? the Judge had the obligation to determine that this record and the attacked findings satisfied that mean- ing as well. 2B Barron & Holtzoff, Federal Practice & Procedure Sec. 1135 (Wright ed. 1961) citing this Court’s decision in Sanders v. Leech, 5 Cir., 1946, 158 F.2d 486; United States v. Kaplan, 5 Cir. 1960, 277 F.2d 405; Manu- facturer’s Cas. Ins. Co. v. Instrusion-Prepakt, Inc., 5 Cir., 1959, 264 F.2d 758; Slattery Co. v. United States, 5 Cir., 1956, 231 F.2d 37; Western Cottonoil Co. v. Hodges, 5 Cir., 1955, 218 F.2d 158.” ‘The Fifth Circuit, in W. R. B. Corporation v. Geer, supra, at p. 753, went on to say that essential as is the Court’s depend- ence on counsel to pinpoint “both the specific issues under attack and the relevant portions of the record demonstrating the asserted pres- ence or absence of evidence, * * * it cannot escape the judicial travail incident to the objections by putting the burden on counsel alone.” . In the quoted case, the Court vacated the judgments appeal- ed from, and remanded the causes. 13 In the instant case, Counse) for petitioner is bold to assert he believes petitioner is entitled to have the court gran: certiorari, docket the case, and after argument and hearing, render judg- ment in favor of petitioner. But surely he has shown entitle- ment to further findings and conclusions of law, and then to judgment according to the law and the evidence. V The questions presented are of vital concern to the Banking trade, and business generally. If permitted to stand. the de- cision of the Ninth Circuit against petitioner could have a far- reaching effect on business by mail, and could mean the end of large and important transactions unless the parties sit across table and deal with each othe. face tc face. One could never know when a receiving bank would credit moneys transmitted by mail, and pursuant to instructions via mail, to another’s ac- count and use the sender’s money to wipe out “overdrafts,” ard, by failing to respond to repeated requests for information con- cerning the sender’s money place such funds as collateral for loans to a receiving bank’s impoverished and need, customers, especially those already indebted to said banks. Opportunities for gross wrong-doing could easily be multiplied. 14 CONCLUSION To give lasting and permanent effect to this Court’s decisions and resolve the conflict between the decision of the Ninth Cir- cuit and contrary decisions of the Second, Fifth, Sixth, Eighth and Tenth Circuits; and the state Supreme Court eases cited herein, the petition for a writ of certiorari should © granted. Respectfully submitted. Counsel for Petitioner. A. S. JOHNSTON III, ESQ., Suite 3-5 Schwan Building. Biloxi, Mississippi, Of Counsel. 15 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT B. RAY ROBBINS CO., Appeiiant, VS. No. 19,195 VALLEY NATIONAL BANK OF ARIZONA, Appellee. (October 29, 1964) On Appeal from the United States District Court for the District of Arizona Before. HAMLIN, JERTBERG and DUNIWAY, Circuit Judges. HAMLIN, Circuit Judge B. Ray Robbins Co., a New York corporation, appellant here- in, filed an action i. the United States District Court for the District of Arizona against Valley National Bank of Arizona, « national banking association, appellee herein, and Anthony Vaccaro, seeking to recover the sum of $30,000. After the filing of said action Vaccaro was adjudicated a bankrupt and the ac- tion was stayed as to him. After a trial to the court, a jury having been duly waived, the district court rendered a judgment in favor of appellee. A timely appeal was taken to this court which has jurisdiction by reason of 28 U.S.C. Sec.1291 et seq. The facts show that Anthony Vaccaru was indebted to appel- lee by reason of certain jioans theretofore made to him by ap- pellee. He was seeking a further loan from appellee and was informed by appellee that such loan would not be granted un- less such further loan was secured. It appears that Vaccaro then talked by telephone to one McCabe in New York concern- ing a method of raising money. McCabe mentioned a time de- 16 posit. Vaccaro told McCabe to talk to Nesbitt, a vice president of appellee, and that he (Vaccaro) would do whit Nesbitt told him. On August 10, 1969, Nesbitt wired McCabe as follc s: “We will accept a time deposit in the amount of $30,000 ior a term of one year bearing interest at 3% per annum pledged as security on a loan in like amount for Anthony Vaccaro. H. W. NESBITT Vice President Valley National Bank” It appears further that thereafter McCabe talked with appel- lant in New York concerning the transaction. Thereafter on August 23, 1960, appellant without contacting Vaccaro or ap- pellee delivered a certified check in the sum of $30,000 to the Bank of New York in New York, with which bank appellee had an account. On the same day the Bank of New York wired appellee that it was creziting appellee in its bank with $30,000 by order of Anthony Vaccaro. On receipt of this wire appellee contacted Vaccaro, granted him a $30,000 loan, isued a $30,000 certificate of deposit in his name which Vaccaro endorsed in blank and returned it to ap- pellce as security for the loan. On Vaccaro’s signing a note for $30,000 this sum Was deposited in Vacearo’s account which prior to that time had been overdrawn in the sum of approxi- mately $17,000. This transaction was completed between ap- pellee and Vaccaro not later than August 24, 1960. About a week later, on August 30, 1960, appellee received a letter from appellant dated August 23, 1960, addressed to Mr. Nesbitt, which stated that it thar day had delivered to the Bank of New York a certified check in the sum of $30,000 to be deposited to appellee’s account and that “Negotiable Certificates of Deposit, paying 3% per annum maturing in twelve months, are to be issued, free from all encumbrances of any kind whatsoever and not to be consid- cred as collateral or security for any loan now or hereafter made by the bank, in the names of the following: 17 Principal Investing Corp. $ 5,000 Inez Russo 10,000 Floyd B. Gregory or Letha M. Gregory 5,000 Gold Pure Food Products Co., Inc. 10,000 Please mail all Certificates to us.” This was the first contact between appellant and appellee. At the time of the receipt of this letter by appellee the transac- tion between Vaccaro and appellee had been completed, and at the time of the completion of the transaction appellee had no knowledge of appellant or of its interest or participation in the transaction. Also as of August 23. 1960, neither appellee nor Vaccaro had requested appellant to furnish a compensating bal- ance. Appellant has advanced several theories to support his claim, none of which is supported by the evidence or by the court’s findings. In the complaint appellant alleged that it “was requested to make and did so make a compensating balance deposit with” appellee. If this was intended to allege that appellee made such a request, there is no evidence in the record to support such a claim. In the trial cour? appellant then argued that Mc- Cabe was appellee’s agent and that he made a ynaterial misre- presentation to appellant to induce appellant’s action. Appel- lant has pointed to ne evidence in the record which would show that McCabe was appellee’s agent. The district court found that McCabe was “acting on behalf of someone other than de- fendant Bank” (appellee). The evidence supports this finding. On appeal appellant argues that it can recover under Restate- ment, Restitution Sec. 28(c) (1936) on the ground that the mis- take was induced by material representation of McCabe who purported to be an agent of appellee. Section 28 reads as fol- lows: “A person who has paid money to another because of a mis- take of fact and who does not obtain what he expected in return is entitled to restitution from the other if the mistake is induced: (a) by the fault of the payee, or (b) by his innocent and material misrepresentation, or (c) by the fraud or mate- 18 rial misrepresentation of a person purporting to act as the payee’s agent, or (d) by the fraud or material misrepresenta- tion of a third person, provided that the payee has notice of the traud or representation berore he has given or promised something of value.” The record does not show that McCabe ever purported to be acting for appellee. Section 28 (c) therefore cannot apply. Sec- tion 28{d) also is completely inapplicable because yellee made a loan to Vaccaro before it received notice of any claimed mistake. Among other findings made by the district court were the following: “14. That at no time material to the issues of this case was there an agreement between plaintiff and defendant Banx that said Thirty Thousand and no/100 Dollars ($30,000.00) should be used as a compensating balance by defendant Bank, and certificates of deposit issued by defendant Bank in accordance with plaintiff's instructions. “15, That defendant Bank was not at any time material to the issue of this case acting under a mistake as to its under- standing with the defendant Vaccaro.” From its findings of fact the district court made certain con- clusions of law which are set out in the margin.’ We hold that the findings of fact of the district court are sup- ported by substantial evidence and are not clearly or at all erroneous and that the court’s conclusions of law therefrom are proper. Judgment affirmed. 1CONCLUSIONS OF LAW 1. That plaintiff was acting under a mistake as to the terms and condi- tions of the understanding between the defendant Vaccaro and the defendant Bank; that defendant Bank was not acting under any mis- take; that the defendant Bank made no misrepresentation regarding this transaction to any one concerned with this transaction; that there was no ainbiguity in the terms of the understanding between the de- fendant Bank and defendant Vaccaro; that the defendant Bank had no 19 rotice prior to acting that the plaintiff had made a mistake; that the eefendant 3ank acted in good faith. se * 4. That the defendant Bank was under no duty to rescind the trans- action at the time it received plaintiff's letter of instructions dated August 23, 1960 (Plaintiff's Exhibit 1); nor was defendant Bark under a duty to seize the money remaining in defendant Vaccaro’s checking account at the time it received said letter. 5. That the defendant Bank has materially changed its position in good faith and in reliance upon the advice of credit received from said Bank of New York; and that the defendant Bank cannot be restored to its original position. 6. That at no time material to the issues of this case was there any con- tract, agreement or understanding between plaintiff and defendant Bank concerning the disposition or use of the said Thirty Thousand and no/100 Dollars ($30,000.90). 7. That the said Bank of New York was not acting as the agent of the defendant Bank at al.y ‘ime material to the issues of this case. 8. That the said McCabe was not acting as the agent of the defendant Bank at any time material to the issues of this case. aon APPENDIX B Judgment UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT R. RAY ROBBINS CC., Apvellant vs. VALLEY NATIONAL BANK OF ARIZONA, \ Appellee No. 19,195 APPEAL from the United States District Court for the Dis- trict of Arizona. THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Arizona, and was duly submitted. f ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said Dis- trict Court be, and hereby is affirmed. Filed and entered October 29. 1964. 21 APPENDIX C UNITED STATES COURT OF APPEALS FOR THE NI°.TH CIRCUIT Excerpt from Proceedings of Wednesday, December 9, 1964. Before: HAMLIN, J ERTBERG AND DUNIWAY, Circuit Judges. ORDER DENYING PETITION FOR REHEARING d by direction of the Court, ITIS f appellants filed November 27, herefor by rule of court, for a is denied. On consideration thereof, an ORDERED that the petition 0 1964, and within time allowed t rehearing of above cause be, and hereby --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0521%3A2. Public record. Not legal advice.