46 Neb. 861 | Neb. | 1896
This case was before tbe court in 1894 and the judgment of the district court therein was reversed. (Thomas v. City Nat. Bank of Hastings, 40 Neb., 501.) On a new trial in the district court there was a verdict followed byjudgmeut for the plaintiff. This judgment the bank seeks to reverse. The former report of the case contains a sufficient statement of the facts, except, perhaps, as to some minor features which will be mentioned in the course of the opinion.
The report contains what purports to be a bill of exceptions; but this was, on motion of Thomas, quashed at the
The charge of the district court was very long. The instructions were evidently prepared and requested by counsel. It followed that several instructions, stating in substance the same proposition of law, but in varying language, having been submitted, the court in several instances gave the whole group of such instructions, so that the
One of the defenses was that the notes sued on were secured by mortgage and that another action was pending to foreclose the mortgage. By one of the instructions the jury was told that both remedies might be pursued at the same time. This as a general abstract statement of law would be incorrect {Meehan v. First Nat. Bank of Fairfield, 44 Neb., 213); but we cannot learn without a bill of exceptions whether the proof showed a state of affairs within the rule announced in the case cited, or even whether there was any proof in support of the plea. Error, therefore, much less prejudicial error, does not appear.
In several of the instructions the jury was told that if certain other facts, not necessary to here mention, should be found, then the plaintiff might recover, although Bostwick, the president of the bank, had converted the proceeds of the sale of the notes to his own use, and had thereby defrauded the bank. These instructions are attacked on the ground that the bank had pleaded no such matter in defense, and that the instructions were, therefore, not within the issues. But many things may develop on the trial not directly pertinent to the issues, and which a jury
The fourth instruction was to the effect that if on or about May 10, 1889, the bank purchased from Paul the notes in action and placed to Paul’s credit the sum of $9,525 in payment for said notes, and if, on or about May 18, the bank sold said notes to the plaintiff for $10,300, paid by plaintiff to the bank, and the bank retained for its 'own use $775 of said money, then the verdict should be for the plaintiff. The objection urged to this instruction is that it held the bank liable for the whole amount of the notes, provided the jury found that it received the benefit of $775 only; but in view of the issues the instruction was correct. The plaintiff alleged a sale of the notes by Paul to the bank and a resale with contract of guaranty by the bank to the plaintiff. One of the defenses was that the bank never owned the notes; that they were not sold by the bank, but by Bostwick, for the benefit of himself and others, and that Bostwick had no authority to execute the guaranty. When we read this instruction we find it told the jury that if the bank bought the notes and paid Paul $9,525 therefor, or rather by credit on his account became his debtor for that sum, and if it then sold the notes for $10,300, and retained for its own use $775, which was the difference between the purchase and selling price, it was liable. We must assume that the evidence warranted an instruction restricting the inquiry to this class of facts; and if so, such a transaction would, under the former opinion in this case, be a ratification of Bostwick’s act and charge the bank upon the guaranty. The amount of profit realized by the transaction would not affect the liability. Closely allied to the question just considered is the contention that some of the instructions are erroneous in sub
In two instructions the jury was told that the authority of Bostwick to execute the guaranty was conclusively presumed, and this statement is attacked. It was held on the former hearing that the authority of the president to execute the guaranty would be conclusively presumed in favor of a purchaser without notice to the contrary. This rule was laid down with reference to the facts of the case, and was derived from People's Bank of Belleville v. Manufacturers Nat. Bank, 101 U. S., 181. In both of the instructions given the general statement attacked was coupled with other elements confining the rule within the limit stated in the former opinion, and it was therefore not erroneous.
The jury was instructed that possession of negotiable instruments is prima facie evidence of ownership. In another instruction this was qualified with the further requirement that such instruments should be in form negotiable by delivery. These statements were made in connection with instructions in regard to plaintiff's right to presume that the bank was the owner of the paper. It is settled that in an action upon an instrument negotiable by delivery, possession is prima facie evidence of ownership
Another statement in the instructions, two or three times repeated, calls for closer examination. It is, in effect, that although the notes were not the property of the bank, plaintiff may recover, provided Bostwick, the president of the bank, represented that the bank owned the notes, if the plaintiff bought them relying on that representation and remitted the purchase money to the bank. The bank had no authority to guaranty the payment of the paper except in course of its banking business. It had no authority to execute such a guaranty for the accommodation merely of others. It had authority to buy commercial paper and sell it; and in connection with the sale to guaranty its payment. (Thomas v. City National Bank of Hastings, supra.) The argument is that while Bostwick might bind the bank, although without special authority so to do, in dealing with the bank’s property, he could not bind the bank by contracts made in its name on matters not connected with its business; and that his representation and declarations were-not sufficient in a particular transaction to establish the fact-that that transaction was on behalf of the bank, and that its subject-matter was the bank’s property, nor were they sufficient to justify the plaintiff in believing so. This question is by no means new, and has not met an entirely uniform solution by the courts; but we take it that the better-doctrine is that in such a case, where one of two innocent, persons must suffer through the misfeasance of the agent of one, that one who has placed the agent in a position to-perpetrate the fraud must suffer. This general rule will hardly be controverted. (Hern v. Nichols, 1 Salk. [Eng.],. 289, and many other cases.) It has been applied to cases like the present. Thus, in Houghton v. First Nat. Bank of Elkhorn, 26 Wis., 663, the case was very much like that before us, and the court hell the bank bound by the repre
No other arguments are advanced calling for special notice here.
Judgment affirmed.