When a jury is waived in writing, and the case tried by the court, the court's finding of facts, whether general or special, has the same effect as the verdict of a jury; and, although a bill of exceptions is the only way of presenting rulings made in the progress of the trial, the question whether the facts set forth in a special finding of the court, which is equivalent to special verdict, are suff cient in law to support the judgment, may be reviewed on writ of error without any bill of exceptions. Act March 3, 1865, c. 86, § 4, (13 St. 501; Rev. St. §§ 649, 700;) French v. Edwards, 21 Wall. 147; Ex parte French, 91 U.S. 423. The question whether the facts found by the court in the case at bar are sufficient to support the judgment below includes the several questions of law affecting the merits of the case. That judgment is for more than $5,000, which is sufficient to give this court jurisdiction in error. Act February 16, 1875, c. 77, § 3, (18 St. 316.) It is therefore unnecessary to consider whether those questions are duly stated in the certificate of division of opinion, within the rule affirmed in Williamsport Nat. Bank v. Knapp, 119 U.S. 357; S.C.. 7 Sup. Ct. Rep. 274.
The leading facts of the case, as found by the circuit court, are as follows:
The original action was on a promissory note made by the defendants, payable to the order of J. H. Dowell & Co., and by them indorsed to the plaintiff bank. J. H. Dowell & Co. were a partnership of cotton factors at St. Louis, in which Dowell was the acting and managing partner. Dowell was also a partner with the defendants, under the name of Allen & Dowell, in the working of a cotton plantation in Arkansas.
The note in suit was made and delivered by the defendants to the payees, their factors, to enable them to raise funds to furnish supplies for working that plantation, and under an agreement between the parties that the note should be taken up and paid by the factors out of the proceeds of the cotton crop of the plantation for the coming season when received and sold by them. That crop was consigned to the factors under that agreement, and its proceeds were more than sufficient to pay this note and all other charges of the factors. It is not doubted that upon these facts the makers would have a complete defense to the note in the hands of the payees. But, before the maturity of the note, the payees had it discounted by, and indorsed and delivered it to, the plaintiff bank, with which they kept their deposit account, and of which they from time to time borrowed large sums of money. As soon as they received the bills of lading of cotton consigned to them as factors by the defendants or by other persons, they delivered those bills to the bank, which thereupon gave them a credit, in their deposit account, of $40 for each bale, and took their note for the amount, payable on demand, with interest. On the arrival of the cotton, it was delivered to warehousemen, who gave receipts undertaking to deliver it to bearer, and these receipts were delivered to the bank in exchange for the bills of lading, which were surrendered and canceled. There was no evidence that either the bills of lading or the warehouse receipts were indorsed in writing. The bank knew that the payees of the note in suit were factors, and that they held the cotton as such. It did not know, and made no inquiry, as to the ownership of any of the cotton, or the dealings of the factors with the owners, or the state of accounts between them.
The cotton was sold in the following manner: The factors negotiated sales by means of samples, and fixed the price and other therms of sale. The bank received the whole price from the purchasers, and delivered to them the warehouse receipts, and credited the factors with the amount received, but at the same time, and as part of the same transaction, required them to draw, and they did draw and deliver to the bank, their checks for the amount of their demand notes held by the bank. After all the cotton had been sold, there was a large balance of account due from the factors to the bank.