Dent v. Peoples Bank

118 Ark. 157 | Ark. | 1915

' Kirby, J.,

(after stating the facts). (1) It is strongly urged that the court erred in refusing the instructions as requested, and in giving said instructions as amended. Tihe president of a bank has authority to take charge of the litigation of the bank, to institute, carry on, and defend legal proceedings, and for the accomplishment of these purposes, may retain and employ counsel on behalf of the bank. 1 Mitchie Banks & Banking, 704; Boone on Banking, § 144; Bolles National Bank Act, 89; 3 R. C. L. 442; 10 Cyc. 904; Citizens Natl. Bank v. Berry, 53 Kan. 696, 37 Pac. 131.

In the Kansas case, the court said: “The president of a banking corporation has power to employ counsel and manage the litigation of the bank in the absence of any order of the board of directors depriving ¡him of such powers.’'’ The authorities do not reach to the extent, ¡however, of holding, that the president of a bank is authorized to make a contract of employment retaining the services of an attorney by the year, for consultations and advice. The business of a bank and other corporations is under the care of and managed by its board of directors, and the president, as a rule, has no greater powers by virtue of his office merely, except he- is presiding officer at the meetings of the board, than any other director of the company. Kirby’s Dig., § § 841-843; 1 Morowitz on Corporations, § 537; 10 Cyc. 903; 3 Cook on Corporations. § 716.

(2) The employment of an attorney upon a yearly retainer is a matter of moment to the corporation, and there is usually no such haste required about it as would prevent the matter being considered and passed upon by the board of directors, and although the authority of the president of the bank in this instance to make the contract mio-hf have been, imnlied from the usual course of business of the bank, the president having been allowed to manage and control its affairs largely, the instruction offered did not submit the question of his implied authority to the jury and permit them to draw the inference that he had such authority, and was erroneous as requested in telling the jury that if the contract was made by the president of the bank, and the services performed, they would be warranted in finding for the plaintiff. The requested instruction numbered 1 being erroneous, in assuming that the president had authority to make the 'contract and bind the bank, the court tacked on the amendment to correct the error and directed the jury that such a contract made with the president would be valid in effect if ratified by the board of directors.

(3) Neither' did the court err in giving instruction numbered 3, which, as. requested, assumed that the cashier or other officers of the bank had authority to bind it to the payment under an alleged contract of yearly retainer for an attorney’s services, other than .attending to its litigation, in giving advice about the business.of the bank in refraining from taking cases against it, and holding himself in readiness to serve the bank. These officers, as such, had less authority than the president of the bank in that regard, and the amendmenffto the instruction added by the court did but tell the jury that the bank would be bound to pay a reasonable compensation for such service only if the employment was ratified by the board of 'directors. Of course, the bank would have been bound to the payment of a reasonable fee to'the attorney, for the conduct of any litigation of which it received the benefit without regard to whether there was a contract of employment or not, and also to the payment of a reasonable 'Compensation for Ms service in attending to any litigation of the bank upon- a contract of employment made with its president, but each of the instructions, as requested, assumed that the president of the bank or the officers consulting the attorney, had the authority to retain the attorney by the year and bind the bank to the payment of a reasonable compensation for consultations with and advice from Mm in the conduct of the bank’s affairs land the court’s amendment directing that they could not find in his favor unless the contract of employ-merit was ratified by tbe directors of the bank, was but a correction of the instructions in accordance with the law, and no error was /committed in giving them as amended.

As ¡already said, the court could have submitted the question of the president’s or the cashier’s- implied authority, to make the 'contract with the attorney upon the testimony relating to the course of /conduct of this bank’s affairs, but appellant did not request an instruction of this kind, and the court -did not err in its attempt to -correct the requested instructions by the amendment without including the submission of this question in the ©ame instruction.

The views already expressed render it unnecessary to -pass upon the question of waiver of the plea of the statute of limitations.

Finding no prejudicial error in the record, the judgment is affirmed.