Oliver Wendell Holmes, Jr.

“ But, by those letters, the City bank did not promise to hold $30,000, or, at the later stage, $25,000, to the credit of the Guthrie bank, out and out. On the contrary, it merely agreed to credit these sums against the notes which it held, on the express condition that no checks should be drawn against them, and that, when the first note matured, or, after the second, whenever the bank pleased, the notes should be charged against the account and extinguish it. We perceive no sufficient ground for substituting a fiction for the only promise the City bank ever really made. ”

“ So far as the surrender of the notes goes, the parties stand exactly as if that had taken place without a check, in consideration of Billingsley making the note on which the credit was given to the Guthrie bank. It is said that the Guthrie bank got the money, but did not get the benefit of the loan. As between the banks, no one got any money; and the only benefit of the loan in fact or contemplation was a swindle upon the bank examiner. If the City bank should be held, it would be held without ever having received a quid pro quo except in the most narrowly technical sense. ”

“ In view of the statement of counsel, at the agrument, to the circuit judge, that they did not contend that the contract was illegal, a disclaimer repeated to us, and in view of the possibility that the facts were found as they were with that agreement in view, we shall not consider that aspect of the case. It would not help the plaintiff. McMullen v. Hoffman, 174 U.S. 639, 43 L. ed. 1117, 19 Sup. Ct. Rep. 839. We are of opinion upon the facts that we have set forth that the courts below were right. ”