#### FARMERS AND MERCHANTS BANK OF WILLIAMSTON v. GERMANIA LIFE INSURANCE COMPANY.

(Filed 16 March, 1910.)

Evidence, Newly Discovered — Cumulative—New Trial.

The newly discovered evidence relied on for a new trial being cumulative, and the majority of the Court being of opinion with the disposition of the case as reported in 150 N. C., 770, this petition to rehear is dismissed.

Hoke, J., dissenting.

.PetitioN to rebear. Tbis case tried at Spring Term, 1909, of tbe Superior Court of Maetin, and reported in 150 N. C., p. 110.

Harry W. Stubbs, Wheeler Martin, H. A. Gilliam and W. W. Glark for plaintiff.

John W. Hinsdale and Shepherd & Shepherd for defendant.

Brown, J.

We bave considered tbe petition to rebear tbis canse with that care which its importance deserves. Although impressed by tbe learned and well-considered supporting briefs filed by defendants, we are unable to discover that we bave overlooked any authority or point called to our attention on tbe first bearing of tbe case. An examination of tbe original briefs discloses that every contention now made (except tbe newly discovered evidence) was fully presented at that time, and tbe opinion shows they were given due consideration. Upon re-examination we still think there was evidence which * compelled bis Honor to submit tbe question of notice as to tbe fraudulent character of tbe check sued upon to tbe jury, and that tbe instructions given were full and correct.

As to tbe newly discovered evidence, that consists of alleged statements made by F. S. Fagan, cashier, and by one of tbe directors of tbe plaintiff bank, Dr. Knight, since tbe trial of tbe cause and while it was pending .in tbis court; it is contended that tbe alleged newly discovered evidence is important in that it goes to show that, outside of any constructive notice which it was claimed tbe plaintiff bad of the limitations upon tbe authority of Hall ufider bis contract with tbe defendant, the plaintiff bad actual knowledge thereof.

We think that at best tbe newly discovered evidence is only cumulative in character, consisting of declarations alleged to bave been made by plaintiff’s witness since tbe trial to some of defendant’s attorneys, and that it is of no great importance.

*164The cheek sued on was one drawn by Miss Parham, not by Hall, and in pursuance of express authority given by defendant, as we have held. Any limitations imposed upon Hall’s personal authority by his contract with defendant (which the newly discovered evidence is relied upon to fix the plaintiff with knowledge of), it would seem to us not to be decisive of the real question which controlled the Court.

It appears both from the majority and minority opinions that the vital questions were whether Hall and Miss Parham were engaged in a kiting business, and whether or not that fact was known to the plaintiff or could have been known by the exercise of reasonable diligence, and the further fact as to the authority of Miss Parham to draw the check sued on.

Were we triers of the fact, we might have reached a different conclusion, but the jury have found that the plaintiff had no knowledge of any such kiting, and that it could not in the exercise of ordinary care under the circumstances have obtained this knowledge.

We have held and still hold, that taking the evidence of the cashier and the testimony as a whole, the trial judge was not authorized to instruct the jury that in any view of it-plaintiff was fixed with knowledge of the fraudulent character of the check sued on. The judge charged fully upon this phase of the ease, and it was fully presented and carefully considered by this Court when the case was originally heard.

The petition to rehear is

Dismissed..

Mr. Justice'MaNNING took part in the decision upon this petition and concurs with the majority opinion. Mr. Justice Hoke adheres to his concurrence in the former dissenting opinion of Mr. Justice CoNNOR, as presenting his views.