66 Colo. 226 | Colo. | 1919
delivered the opinion of the court.
Plaintiff in error, plaintiff below, The Commercial Bank & Trust Company, brought suit to recover upon a promissory note for $3,000.00, signed by defendant in error, defendant below, Tom Beach. The note sued upon was the last of a series of renewal notes, each of which were for the same amount, and apparently covered the same transaction. Defendant interposed a plea of partial failure of consideration. Trial was to a jury, with a verdict for $1,347.03, with judgment for plaintiff, who, being dissatisfied with the amount of the award, brings the record' here for review.
The essential facts relative to the transaction are as follows: Beach was desirous of obtaining certain shares
It is not controverted that the transaction was carried out by Nelson practically as above outlined. It is urged, however, that the fraud, if any, was the individual fraud of Nelson; that the bank neither authorized nor ratified it, and that the profits therefrom, whatever they may have been, were taken by Nelson. It is further contended that the bank was without authority to act in the purchase of the stock; that it did not in fact make the purchase, and had it done so, that the transaction would have been illegal. In an attempt to establish the fact that the bank had the power to act in the matter, defendant introduced over objection a paragraph of the articles of incorporation of the bank, providing that it might carry on an agency and trust business. The admission of this evidence is assigned as error, for the reason that the Bank Act, Laws 1911, prohibits banks from purchasing stocks of other corporations.
There is competent evidence in the case that Nelson acted for the bank in some capacity. The relation of maker and payee of a promissory note arose between the parties as a result of the acts of the cashier. His acts were strictly within his authority, and the bank had certain benefits from the transaction, and seeks to retain them. The agreement, according to the testimony of Beach, was that the bank should purchase the stock, and that acting through its cashier did purchase it. The bank provided the funds for that purpose, upon a note given by Beach to it, and by its cashier disbursed the funds improperly and wrongfully. It now retains benefits from the transaction, has collected and seeks to retain all the interest paid by Beach before he discovered the fraud, and apparently sanctions and approves the acts of its cashier. Under such circumstances to hold the bank was not a party to the transaction and not liable for the damage done the defendant would be a travesty upon justice. The bank, through its cashier, was the prime mover in the matter. The correspondence shows that Nelson carried on the negotiations as the cashier of the bank in the purchase of the stock, and not individually. The testimony upon this question, if accepted by the jury as true, which seems to have been the fact, was sufficient to warrant and uphold the verdict. Upon the whole record it seems plain that the bank should not now be allowed to repudiate the transaction on the ground of lack of power in itself, or insufficient authority in the cashier. As was said in First National Bank v. Wich, 62 Colo. 119, at page 122, 160 Pac. 1037:
*230 “The cashier of a bank has greater inherent powers than any other official of the corporation, and is generally the active financial agent and manager of the bank. He is endowed with full power to transact all usual and general business of the bank, and it would be manifestly unjust to permit a bank to take advantage of the fraud of one whom it holds out to the public as its responsible and trusted agent, and whom the law regards as the chief agent and spokesman of the corporation. Common honesty precludes such conduct.”
Moreover, the bank put it in the power of the cashier to carry out this deal, and if he committed a wrong and damaged the defendant by improper methods, purporting to act in his official capacity, the bank should bear the loss, rather than an innocent outsider, who undoubtedly had faith in Nelson because of his relations to the hank. That institution has its remedy against Nelson and should look to him for the damage, if any, which it has sustained on account of his wrongful acts, made possible through its own conduct.
The assignments of error relative to the instructions given and refused appear to be highly technical and hypercritical, and lack substantial merit. We think the record shows that the law governing the case was fully, clearly and concisely given to the jury. Neither are the errors assigned based upon the admission of alleged hearsay and other improper testimony well taken, as the testimony of this character was admitted for the sole purpose of showing what information had been received by Beach which moved him to act, and the jury was so advised, and not for the purpose of establishing the truth of such information. For this purpose, and thus limited as it was, its admission was not error.
The questions involved are almost wholly ones of fact. The testimony having been submitted to the jury, under proper instructions as to the law, for its findings of fact, and it having found the facts, in all particulars, in favor
Judgment affirmed.
Mr. Chief Justice Garrigues and Mr. Justice Allen concur.