The question, which has been so ably and exhaustively argued by the counsel on each side, to wit, whether it is within the authority of a national bank tо purchase a promissory note, in contradistinction to a discounting of it, is one which cannot properly arise in this case. The action is for money had and received by the defendants to thе plaintiff’s use. The answer is a denial that the defendants receivеd the money to the plaintiff’s use. It appears from the facts that the defendants received money of the plaintiff, and the real question in the case is, to whose use did they receive it. They say they received it to their own use; that they received it in payment of certain promissory notes sold and delivered by them to the plaintiff. If this be so, it is immaterial whether the plaintiff had the right to buy or not. The defеndants had a right to dispose of the notes to whomsoever they сhose, and if the plaintiff bought them and paid for them, it could not rescind the contract thus fully performed and executed upon the grоund that it was a purchase which it had no authority to make, and recover back the money paid upon it. A corporation, аcting without authority, is not in the position with the privileges of an infant to аvoid an improvident contract, but in the position and subject to thе liabilities and disabilities of a wrongdoer, if it exceeds its authority. It sannot complete a bargain with a third party, which such third party has a right tо make, and then rescind the contract, wholly executed, if such сontract proves to be an improvident one, and recover back the consideration:
The real controversy between these parties is upon a question of fact. Was there аn executed contract between them, of which the transferring оf the notes upon the one side, and the payment of the money upon the other, were the respective considerations ? If so, the transaction was complete, and the plaintiff cannot rescind and recover back the money paid. If, howevеr, there was no contract between the parties ; if the title tо the notes had not passed to the plaintiff according to the agreement and understanding between the parties ; that is, if the parties to the transaction did not understand the contract to have been made, both parties understanding that it remained wholly at the option of the plaintiff whether to purchase or not, then, whether the contract was one which the plaintiff had authority to make or not, it had not in fact made it; and if it is able to prove that the money went into the defendants’ hands upon no consideration and wаs to be held to the plaintiff’s use, unless the plaintiff should determine to consummate the contract, it will be entitled to recover. In this view, it is necessary that the case
Stand for trial.