67 N.W. 821 | N.D. | 1896
Banquo’s ghost was not more persistent than is this litigation. It will not down, either in the court below or in this tribunal. Thrice has it been tried in the District Court, and it is now for the third time before us on appeal. The facts have been so fully developed in the opinions written on the two former appeals (4 N. D. 182, 59 N. W. 1029, and 5 N. D. 80, 64 N. W. 114) that it is unnecessary to do more at this time than to refer to those opinions, and point out the new elements which on the third trial were introduced into the case. On this last trial, as on the previous trials, the court directed a verdict for the defendant. It is this ruling of the Distinct Court which is challenged on this appeal. Since the case was before us last, the pleadings on both sides have been amended. The plaintiff has elected to treat the act of the defendant in assuming to sell to itself, in violation of its duty to the plaintiff as his agent, as a conversion of the notes, and has also elected to waive the tort, and sue on the theory of an implied promise on the part of the defendant to pay the value of these notes at the time of their conversion. The defendant, by its amended answer, now for the first time asserts that it was not acting as agent, did not intend to act as agent, and was not regarded by the plaintiff as being his agent in the transaction leading up to the alleged sale of the property in question. No new facts were disclosed on the trial to support this utterly untenable theory. The facts are precisely the same as th'ey were when this case was before us the last time. See 5 N. D. 80, 64 N. W. 114. We then held on these same facts that defendant was plaintiff’s agent in the selling of the notes in question. That fact, is, therefore, no longer open to controversy. At all times up to the period when the defendant’s answer was amended, it had conceded that it was agent, and it defended the case solely on the ground that it had accounted for and paid over to plaintiff all the net proceeds of the sale effected by it as such agent. The agency was, in effect, admitted in the original answer. It formed the corner stone of defendant’s argument in this court on the’first appeal, and was not questioned by defendant’s counsel in brief or
It will be noticed that the authorities hold that the bank itself can enforce a contract or obligation or security although in securing the cause of action or security it exercised a power not conferred. Surely, then, it should not itself be heard to urge its own violation of law as a defense to the contention that, having assumed to act as agent, it must live up to the common honesty which is required of all agents. Stripped of all disguise, the ruling of the court, if the decision herein was placed on that ground, is that the bank, which had induced another to believe that it was acting as agent for him, and who has therefore reposed full confidence in such bank, may urge its own unlawful usurpation of power as a justification for its betrayal of the trust reposed in it. If its first act, in assuming to represent the plaintiff in the sale, had been lawful, it would have been liable for its subsequent illegal act. But because both acts were illegal it is insisted, and seems to have been held in this case, and there is no liability whatever. On this theory, if one wrong is preceded by another, this fact makes right the last wrong. The defendant’s lips are
But it is urged that defendant’s cashier, with whom all the communications were had, and by whom all the letters and telegrams in behalf of the bank were written, had no authority to bind the bank by agreeing to act as agent for the plaintiff. There are several answers to this contention. If, as we hold to be the law, it was under the circumstances of the case, within the power of the bank to act as agent for plaintiff in the sale of those notes as a means to a lawful end, — i. e. the collection of plaintiff’s note for $2,000 held by the bank, by realizing on the collateral by a sale thereof, — then it was within the ordinary powers of the cashier, as the financial officer of the bank, charged with the custody and control of its funds and the collection of its claims, to enter into this arrangement on behalf of the bank that the bank should act for plaintiff in the sale of these notes. See i Morse, Banks, § § 152, 159. Besides, it appears that the bank had ratified his acts
f It is also iñsisted that the plaintiff, by waiving the tort, has ratified the sale by defendant to itself at the price specified by the plaintiff. This claim rests on an utter misconception of the effect of such a waiver. It is merely a relinquishment of the right to proceed as for a tort. The tort itself, so far as it gives rise to a cause of action, is not forgiven. The cause of action it created is not extinguished. The right to recover the value of
The judgment of the District Court is reversed, and a fourth trial is ordered.