61 F. 551 | 2d Cir. | 1894
The principal question raised by the assignment of errors is whether the trial judge erred in refusing to,direct a verdict for the plaintiff. Where; the defendant excepts to the direction of a verdict for the plaintiff, but makes no request to go to the jury, he cannot he heard to assail the judgment upon the ground that there were questions of fact for the jury. Provost T. McEncroe, 102 N. Y. 650, 5 N. E. 795. Where both parties move for the direction of a verdict, and neither requests any question of fact to be submitted to the jury, they concede that there is no question of fact, and that the case turas wholly upon questions of law, which are to he determined as though the facts were undisputed. Thereupon every fact having the support of sufficient evidence is presumed to have been found in favor of the successful party, and the finding is conclusive if there is any evidence to sustain it. Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130; Sutter v. Vanderveer, 122 N. Y. 652, 25 N. E. 907; Leggett v. Hyde, 58 N. Y. 275; Koehler v. Adler, 78 N. Y. 289.
The evidence in the record was sufficient to establish the following facts: The Xational Bank of Oheyenne, located at Oheyenne,
Upon these facts we entertain no doubt that plaintiff was entitled to a verdict. If Collins had deposited §10,000 with the defendants in the name of the Cheyenne National Bank, to be held by them for tbe bank in the form of an ordinary banker’s credit to a depositor, it being understood between him and them that it was the purpose of the transaction to give him credit with the bank as for so much money received by it from Mm, it is entirely plain that no one without the authority of the bank would have had any right to meddle with the fund. By a deposit in its name, or to its credit, the title to the fund would have vested in the bank, and tbe defendants would have been at all times under obligation to pay it over to tbe bank upon request. What took place between Collins and tbe defendant was, in substance, the making of a deposit under circumstances such as have been supposed. Instead of depositing money, Collins deposited his own note, and th.e defendants received it as the equivalent of §10,000. They understood Collins to' be representing himself, and not the bank, in all that took place between Mm and them prior to July 23d. They knew that the purpose of the transaction was to give Collins a personal credit with the hank for §10,000. Having assisted him in representing to the hank that they had given to it an ordinary banker’s credit, as stated in their notice of June 7th, they cannot be beard to deny it by setting up a private understanding between Collins and themselves to the contrary. It is of no consequence that the bank had charged tbe defendants, and credited Collins, with §10,000, before that sum had been deposited to its credit with the defendants. When it was informed by the defendants’ notice of June 7th that the credit that day given to it was "for use J. W. Collins with you,” it had a right to rely upon the truth of the statement, and lo (leal with Collins thereafter as entitled to credit for that amount. While it may he conjectured, in view of the character of Collins’ relations with the bank, that it would have permitted him at any time to overdraw his account, there is no evidence that it did not rely upon the credit in its subsequent dealings with Collins, and the presumption is that the notice given by the defendants influenced the bank as they intended it should. Tbe authorization to tbe defendants by Collins, in bis official capacity as president of the bank, to apply the fund in their hands belonging to the bank in payment of Ms note, does not protect tbe defendants. It is not pretended that Collins had any express authority to apply the funds of the bank to tbe payment of Ms own note. He had no implied authority to do so. There' are no presumptions in favor of such a delegation of power. He who assumes to rely upon the authority of an agent to bind his principal to the discharge of the agent’s own obligation must prove actual authority if contest arises. No principle of the law of agency is better settled than that no person can act as the agent of another in making a contract for himself. West St Louis Sav. Bank v. Shawnee Co. Bank, 95 U. S. 557; National Park Bank v. German American Mut. Warehouse & Security Co., 116
Error is assigned of a ruling upon the trial refusing to allows one of the defendants,- a witness, to answer the question: “What was the transaction between you and the bank respecting the opening of this account?” The question called for a conclusion, and not for facts, and was therefore correctly disallowed. He was permitted to give all the facts. The statements of Mr. Stebbins,' made to the defendants in October, 1890, which they sought to put in evidence, were mere hearsay, and were correctly excluded. We conclude that there was no error in the rulings on the trial, and that the judgment should be affirmed.