rectors of a bank to the secretary of state be made the basis of a common-law action for deceit. The reason is plain. The law exacts the statement; hence it is not voluntarily made. The statement is required to be made to the secretary of state, so that he may take steps to close the bank if it is dangerous to the welfare of the people for it to continue business, but it is in no sense a statement made by the directors with intent to induce persons to deposit their money in the bank, and therefore a common-law action of deceit cannot be predicated upon it. But, above all, the law imposes the duty and prescribes the punishment for a violation thereof. The law vests no right of property or of action in anyone which may be vindicated by the common law, and therefore the penalty imposed by the law is exclusive, and no other remedy is open to anyone. Proceeding along different lines the courts of other jurisdictions have reached the same result as to the liability of a bank director in a common-law action of deceit for false statements as to the condition of the bank, where the duty to make such a statement was or was not imposed and the penalty prescribed for a violation of such duty. The principle upon which the directors have been held liable in those cases is that they knew the statement to be false, not merely that they might, by ordinary care, have known that fact, and that, if they acted in making such statements in good faith, upon details furnished by the ordinary managers and clerks whom they have employed, they cannot be held liable in a common-law action of 276 deceit: Pierratt v. Young (Ky., March 7, 1899), 49 S. W. Rep. 964; Cowley v. Smyth, 46 N. J. L. 380, 50 Am. Rep. 432; 1 Cook on Stock and Stockholders, 3d ed., sec. 158. By this, however, it must not be understood that no action for deceit will lie against a director of a corporation, banking or otherwise (there is no difference), who has made false and fraudulent representations as to the condition of the corporation, whereby others have been misled and damaged. Such misrepresentations need not be personally made, but may consist of voluntary reports or prospectuses which are false, and made fraudulently, and published or circulated: 1 Morawetz on Private Corporations, 2d ed., sec. 573. But this rule cannot be invoked in this case, for all evidence of this kind was withdrawn by the plaintiff, so the referee reports, and the right of recovery was placed squarely upon the reports made to the secretary of state. For these reasons the circuit court was right in entering judgment for the defendants on the deceit count of the petition. 3. It is urged, however, that the circuit court had no power to set aside the findings of fact by the referee and make findings itself, but that it must accept the report as to matters of fact, or else set it aside, as in cases at law with reference to the verdict of a jury. This contention finds support in Lingenfelder v. Wainwright Brewing Co., 103 Mo. 589. But in that case both sides conceded and contended that such was the law, and the court treated the case as counsel had done. But in Wentzville Tobacco Co. v. Walker, 123 Mo. 671, the question was contested and decided. There it was held: "In causes wherein the court may lawfully direct a compulsory reference, it may likewise act upon the evidence reported by the referee, and find therefrom different conclusions of fact from those reported by the referee. This should now be taken as settled law, under the rulings in Caruth-Byrnes Hardware Co. v. Wolter, 91 Mo. 484, and State v. Hurlstone, 92 Mo. 327, without reopening the question they adjudged. It was hence entirely competent for the trial court, in the case at bar, to set aside 277 the finding of the referee in favor of plaintiff, and then to find for the defendants upon the evidence reported by the referee." This is the true rule; for while this court on appeal has always treated the report of a referee as a special verdict, and refused to disturb it if there was substantial evidence to support it (Berthold v. O'Hara, 121 Mo. 97), still the power of the circuit court is very different; for in such cases, a jury being waived, the case is triable before the court, and because the court has not the time to try such cases it calls in the aid of a referee to take the testimony. The referee's power is limited to recommending a judgment. The duty and responsibility as to the judgment rests upon the court. The referee can aid, but not bind, the judge. And with all the evidence before the court, it would be a useless and expensive proceeding to refer the case to the same or another referee; for, perchance, the referee would find the facts the same way again, and so the expensive luxury would have to be repeated until some referee could be found who would find the facts as the judge all the while believed they should be found, and as he could and should have found them upon the coming in of the first report. After full investigation and this protracted discussion, no error has been found in the action of the trial court, and its judgment is therefore affirmed. All concur, except Robinson, J., absent. THE RELATION BETWEEN A BANK AND ITS DEPOSITOR is that of debtor and creditor: Harter v. Mechanics' Nat. Bank, 63 N. J. L. 578, 76 Am. St. Rep. 224; with nothing in the nature of a trust or fiduciary character in or growing out of the transaction: Leaphart v. Commercial Bank, 45 S. C. 563, 55 Am. St. Rep. 800. BANKS-FALSE STATEMENTS OF CONDITION.-The directors of a bank are personally liable for a loss caused to a depositor by their false statements of the condition of the bank, published by their authority, when they knew, or with reasonable care might have known, them to be false. They are liable when they did not know the statements to be true, as well as when they knew them to be false: Solomon v. Bates, 118 N. C. 311, 54 Am. St. Rep. 725. INSOLVENT BANK-DIRECTORS' LIABILITY.—The directors of a bank are conclusively presumed to know its condition. It is their duty to know whether it is insolvent, and it is fraudulent in them to put forth official statements that the bank is solvent when they do not know the same to be true; and they are liable to those who are deceived thereby into having dealings with the bank, or making deposits therein for losses sustained: Tate v. Bates, 118 N. C. 287, 54 Am. St. Rep. 719. See, further, Corn Exchange Nat. Bank v. Solicitors' etc. Co., 188 Pa. St. 330, 68 Am. St. Rep. 872; Grant v. Walsh, 145 N. Y. 592, 45 Am. St. Rep. 626. REFEREE'S FINDINGS.-A JUDGMENT RENDERED on the findings of a referee must stand, though some of his findings may have been set aside, if there is no error in applying the law to those remaining: Little Pittsburg etc. Co. v. Little Chief etc. Co., 11 Colo. 223, 7 Am. St. Rep. 226. NORDYKE & MARMON COMPANY v. KEHLOR. CONTRACTS-MISTAKE IMPOSSIBLE CONDITION.—If a person contracts to construct and furnish a flouring-mill that will produce a result measured by a certain standard assumed by both parties to exist, when in fact no such standard does or can exist, the contract is impossible of fulfillment and unenforceable. CONTRACTS-MISTAKE.-If an attempted contract assumes the existence of, and is based upon the existence of, an essential fact which does not exist, there is no meeting of the minds of the parties in reality, and no contract that can be enforced by either. CONTRACTS - MISTAKE-IMPOSSIBLE CONDITION.— If by mutual mistake a contract is founded upon a condition impossible of performance because of the assumption of the existence of a fact which cannot exist, and its adoption by both parties as the sole standard by which to test the performance of the condition, the contract cannot be enforced, and it is immaterial who furnished the information upon which the condition is predicated, or that the person pleading the mistake had the means of discovering it, or by care and diligence might have avoided it. CONTRACTS-INTENTION-DOUBTFUL TERMS.-The circumstances under which a contract is made and the object in view must be considered in giving meaning to its doubtful terms. CONTRACTS - MISTAKE - IMPOSSIBLE CONDITIONQUANTUM MERUIT-ABANDONMENT.-If by mutual mistake a contract is founded upon a condition impossible of performance, one of the parties, upon discovering that fact, is not compelled to proceed with his part of the contract and trust to a recovery on a quantum meruit for his services. Upon such discovery he may abandon the contract. CONTRACTS —QUANTUM MERUIT.—If labor and materials are furnished by request and no price is agreed upon, the law implies an agreement to pay the reasonable value thereof, but if the parties have by express agreement fixed the amount to be paid upon the completion and fulfillment of the contract, they must be governed thereby, and, in a suit on the contract, a court on quantum meruit cannot avail. C. H. Krum, for the appellant. E. W. Pattison, for the respondent. 646 VALLIANT, J. Plaintiff is a corporation engaged in manufacturing flouring-mills and defendant is an owner and operator of such mills. Plaintiff sued for the price of certain rolls furnished to defendant for his mills, and defendant answered with a counterclaim. The cause was by consent referred to Arba N. Crane, Esq., to try all the issues. Upon the trial before the referee the plaintiff's cause of action was confessed, but the controversy was over the counterclaim, which controversy is sufficiently stated in the report of the referee as follows: "Shortly stated, the case is that by its contract plaintiff agreed to furnish a flouring-mill, of a specified description, to be paid for when completed and proved capable of producing flour of a certain percentage. Before anything considerable was done toward performing the contract, the plaintiff abandoned it on the expressed ground that the contract was 647 inoperative, because the basis furnished by it for said percentage test was impossible. Later on the defendant obtained from Allis & Co., of Milwaukee, a flouring-mill, located on the same site. "The contract in question was entered into and dated May 28, 1892, between the plaintiff, as party of the first part, and the defendant and one E. E. Pierson, parties of the second part. Pierson was a miller residing in Lawrence, Kansas, and operating a flouring-mill in that state. Before this suit was begun he assigned his interest in the contract to defendant Kehlor, whom I will hereafter refer to as the contracting party." Then continuing the report sets out the contract in hacc verba, which, without here copying, it is sufficient to say is to the effect that plaintiff agreed to furnish, within a certain period, all materials, machinery, etc., and erect "in as proper order as is known to science in the art of milling at the present time, and to deliver to them a flouring-mill with an easy capacity of manufacturing fifteen hundred barrels of flour of all grades as specified hereinafter, combined, in every day of twenty-four hours run," according to specifications, etc. The contract concludes as follows: "The meaning and intent of the above agreement is as follows: The party of the first part have agreed to build a flouring-mill according to the specifications, etc., furnished by them, and which is guaranteed by them to be as complete and perfect a flouring-mill, as far as construction, durability, and easy working is concerned, as any in the United States, and to make at least the lowest percentage of flour mentioned hereafter as conditions of payment. "And in consideration of the above, party of the second part agrees to pay for the same when the mill is completed and proved capable of producing not less than sixty per cent of Kansas hard wheat flour, fully equal in quality to the 648 best fifty-five per cent that Kelly & Lysle can make in their mill at Leavenworth, Kansas, as now constructed and operated from the same quality of wheat and the same yield which shall not exceed four and one-half bushels to the barrel of flour, the remaining forty per cent to be fully equal to Kelly & Lysle's remaining forty-five per cent in proportion according to grades contained in Kelly & Lysle's remaining fortyfive per cent, sixty-five thousand dollars, as follows: Fifteen thousand dollars to be advanced when the machinery is ready for shipment; seventeen thousand dollars to be advanced during the construction of the plant and as it progresses; thirtytwo thousand five hundred dollars to be paid upon completion of the plant by the first party as provided above.” Then follow promises to pay seventy-five thousand dollars if the mill produces seventy-five per cent equal to Kelly & Lysle's best fiftyfive per cent, and to pay eighty-five thousand dollars if it produces ninety per cent equal to Kelly & Lysle's best fifty-five per cent of flour. Further the report says: "In his counterclaim the defendant states his view of the terms of the contract, and says that his motive in making it was his obligation to others to build a flouring-mill at Shawnee on land acquired for that purpose. He also alleges his own readiness always to perform his part of the contract and says |