And it is true that a check of itself will not support an action by the payee against the bank. But the statute operates only as to ordinary checks given by depositors on their own accounts. It does not apply in a situation like the present one. Singer v. Citizens' Bank of Headrick, 79 Okla. 267, 193 P. 41. In that case we approved the rule announced in Goeken v. Bank of Palmer, 100 Kan. 177, 163 P. 636, wherein it was held that the provisions in a statute like those stated above have no application to a check in the hands of the owner of the trust fund as payee and drawn thereon by the trustee.
Donaldson, Assignee, v. Farwell et al. 93 U.S. 631, 23 L.Ed. 993; Godwin v. Horne, 60 N.H. 485; 1 Biglow on Fraud, 485. The gist of the fraud in the cases supporting the foregoing rule is not the breach of a promise, but the fraudulent intent of the promisor or obligor at the time he makes the promise or executes the contract, not to perform the same, and to deceive the obligee by his false promise." Citizens Bank of Headrick v. Singer, 109, Okla. 27, 234 P. 708 (see, also, same case in 79 Okla. 267, 193 P. 41); Dover Mercantile Co. v. Gates, 136 Okla. 197, 277 P. 231; Wheeler v. Pursley, 88 Okla. 27, 210 P. 1019; Welge v. Thompson, 103 Okla. 114, 229 P. 271; Williams v. Wilson, 143 Okla. 77, 287 P. 716: Franklin Bond Corp. v. Smith, 163 Okla. 70, 20 P.2d 912. The court in the instant case, upon the allegations and proof of fraud and deceit, instructed the jury as follows:
The plaintiff paid his share on December 16, 1922. Upon conclusion of plaintiff's evidence, a demurrer by defendant was sustained, and by the appeal the question is whether the evidence so offered, with inferences and conclusions to be reasonably and logically drawn therefrom, sustain the judgment so rendered. Singer v. Citizens Bank of Headrick, 79 Okla. 267, 193 P. 41. Appellees contend the demurrer to the evidence was correctly sustained, for:
Both Ross and Marlin testified that the note was given without consideration and solely for the accommodation of the bank, and Marlin testified that the guaranty was executed without consideration, at the request of the officer of the bank, and solely for the accommodation of the bank. A demurrer to the evidence admits the truth of all the evidence adduced, and all the facts which it tends to establish, as well as every fair and reasonable inference to be drawn therefrom (Singer v. Citipens Bank of Headrick, 79 Okla. 267, 193 P. 41; Boatman v. Coverdale, 80 Okla. 9, 193 P. 974; Sharum v. Sharum, 82 Okla. 266, 200 P. 176; Goar v. Brown, 82 Okla. 227, 200 P. 156); therefore, the truth of the evidence of the defendants was, for the purpose of the demurrer, admitted. But it is said that Marlin's testimony shows that he executed the guaranty of the note for the purpose of deceiving the bank examiner, and under these circumstances he is precluded from setting up any defense thereto, and the cases of State Bank of Moore v. Forsyth (Mont.)
" The same is also held in Ziska v. Ziska et al., 20 Okla. 634, 95 P. 254, and Singer v. Citizens' Bank of Headrick, 79 Okla. 267, 193 P. 41. The evidence disclosed that the condition of the sidewalk, or path, had existed for a long time prior to the time of the accident which recruited in the injury of the plaintiff.
It is a well-settled principle of law that a demurrer to the evidence admits all the facts which the evidence tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence. Lamb et al. v. Ulrich, 94 Okla. 240, 221 P. 741; Shawnee Light and Power Co. v. Sears, 21 Okla. 13, 95 P. 449; Ziska v. Ziska, 20 Okla. 634, 95 P. 254; Jaffray v. Wolf, 1 Okla. 312, 33 P. 945; Edmisson v. Drumm-Flato Commission Co., 13 Okla. 440, 73 P. 958; Singer v. Citizens Bank of Hendrick, 79 Okla. 267, 193 P. 41, Taylor, Adm'r, v. Enid National Bank et al., 77 Okla. 74, 186 P. 232. Applying the well-established rule to the instant case, the plaintiff's evidence proves palpable and gross fraud, and misrepresentation.
"If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the facts to be deduced from such inference." Miller v. Marriott 48 Okla. 179, 149 P. 1164; Sartain v. Walker, 60 Okla. 258, 159 P. 1069; Singer v. Citizens Bank of Headrick, 79 Okla. 267, 193 P. 41. In the absence of any direct evidence it cannot be said the inference to be drawn from the circumstances surrounding the tragedy would be favorable to the theory of murder, any more so than the theory of intent to commit robbery.
On the first trial in the lower court a demurrer to the evidence offered by plaintiff was interposed, on behalf of defendant, and sustained by the court, evidently upon the theory that it was an action on the check, and that an oral acceptance or guarantee of payment of the check by the officer in charge of the defendant bank was not binding under the Negotiable Instrument Act of our statutes. The plaintiff appealed from the order of the court sustaining the demurrer, and the opinion of the court in that cause is found in 79 Okla. 267, 193 P. 41, wherein the case was reversed, and remanded for a new trial; the court finding that it was not a suit on the check, but on the transaction in its entirety, based upon fraud, and further found that the evidence offered was sufficient to reasonably sustain the allegations of plaintiff's petition, and that the court was in error in sustaining the demurrer, and in withdrawing the case from the jury. On the second trial the cause was submitted to the jury and resulted in a verdict for the plaintiff for the amount sued for with interest at the rate of six per cent. from date of the check.
A demurrer admits the truth of the evidence of every fact which it in the slightest tends to prove and every reasonable deduction and conclusion to be drawn therefrom, and when measured by this rule, we cannot say that the lower court committed error in overruling the demurrer. Singer v. Citizens Bank of Headrick, 79 Okla. 267, 193 P. 41; Boatman v. Coverdale, 80 Okla. 9, 193 P. 874; Fairbanks, Morse Company v. Miller, 80 Okla. 265, 195 P. 1083; Eaton v. Shaff, 83 Okla. 27. 200 P. 428; Taylor v. Enid National Bank. 77 Okla. 74, 186 P. 232. It is contended by plaintiff in error that the court erred in giving certain instructions to the jury and in refusing others.
"Where, in a trial of a cause, the defendant demurs to the evidence of the plaintiff, such demurrer admits, for the purpose of the demurrer, all of the material facts and evidence, including legal presumption and admission either in the pleadings or otherwise, in the most favorable light towards the plaintiff." Bean v. Rumrill, 69 Oklahoma, 172 P. 452; Helm v. Mickelson, 66 Oklahoma, 170 P. 704; Fuss v. Cocannoer, 70 Oklahoma, 172 P. 1077; Felt v. Westlake, 68 Oklahoma, 174 P. 1041; Smith v. Rockett. 79 Okla. 244, 192 P. 691; Singer v. Citizens' Bank of Headrick, 79 Okla. 267, 193 P. 41; Boatman v. Coverdale, 80 Okla. 9, 193 P. 974. The record discloses that there was no eyewitness to the accident in which the plaintiff sustained the injuries complained of. The plaintiff testified that he was knocked from the top of the car by the guy wire of the defendant's smokestack, which was stretched across the railroad track and anchored to the roof of the Bessemer Gas Engine building; that he fell to the ground on the north side of the car on his head, and that in falling his feet struck the building mentioned, but he never remembered anything else until several days thereafter when he came to his senses in the hospital.