172 P. 505 | Or. | 1918
The record contains many assignments of error, some of which we find it unnecessary to consider. Having testified, admitting that he had received the statement of account mentioned and that he had not made objection to it, the plaintiff introduced in evidence a printed circular of date June 17, 1911, announcing the consolidation of the defendant bank with the Douglas National Bank and the purpose to carry on banking business under the name of and in the rooms of the Douglas National Bank. The plaintiff testified that he had received this through the mail, but nothing appeared in evidence about who sent it or by whose authority it was issued. He also introduced a letter dated August 9, 1911, on the letter-head of the Douglas National Bank and signed by J. H. Booth, president. It is addressed to the plaintiff and aside from mere formal expressions reads thus:
“We have forwarded check books of this bank to you as requested in your favor of the 7th and thank you for your expressions of continuing your business with the consolidated bank as formerly done with the First National. We appreciate it and we assure you that we shall always be ready to care for your wants as called upon and shall extend just the same courteous treatment as given in times past by the other bank which we have now absorbed. Mr. Sheridan continues right along actively with us as he did in the other bank but he wants some of us younger men to take the burden of the work from him a large share of which the writer will undertake.”
“If you find from the evidence that the defendant bank rendered to the plaintiff a statement of account*50 and if you find that said statement credited the plaintiff’s account with a certain sum of money as interest on said loan, and if yon find that the plaintiff with knowledge of said loan retained said interest, then I instruct you that the plaintiff cannot now repudiate the said loan and at the same time retain the benefit of said loan, and if yon find that plaintiff has retained such interest, I instruct you that the plaintiff’s conduct Would constitute a ratification of said loan and plaintiff cannot recover in such action.”
This instruction omits the necessary element of knowledge of all the facts upon, which the account was predicated. On the theory that Sheridan, the individual, was indeed the agent of the plaintiff, the mere statement that a loan had been made, when, in fact, unknown to the plaintiff Sheridan had borrowed the money, would not be sufficient to impute ratification to the plaintiff. He had a right to presume that Sheridan had indeed loaned the money to somebody instead of borrowing it himself and he would have a right to impeach the stated account by reason of the fraud of Sheridan in stealthily exceeding his authority as agent.
“There is no evidence here before you which would permit you to find under the issues and the evidence in this case that the money was loaned either to T. E. Sheridan or E. S. Sheridan, and the defendant cannot be excused from the payment of the amount of the deposit of the plaintiff on account of a loan either to T. E. or E. S. Sheridan.” »
As before pointed out, there was the testimony of two witnesses to the effect that the plaintiff had told them he had, loaned his money to Sheridan. This was competent testimony in support of the averment in the answer that the plaintiff on April 6, 1908, with
“As to the transaction between the plaintiff and the defendant bank, I instruct you that the acts of the president of the defendant bank are to be deemed the acts of the bank itself.”
This is a mandatory sanction of the plaintiff’s'theory notwithstanding the testimony about his admissions that he had loaned the money to Sheridan. There is no law against Sheridan, the individual, borrowing money from the plaintiff with his consent and for the private account of the former, and there is nothing to prevent the plaintiff from loaning Sheridan the money without necessarily making the transaction an act of the bank. It does not unavoidably follow as a matter of law that dealing with a man who happens to be the president of a bank makes his acts those of the bank. There are two sides to this question, dependent upon whether the plaintiff was dealing with the bank through its president, as he now claims, or whether he dealt with him as an individual and loaned the money to him in his private capacity as the two witnesses testify he related to them.
“If you find that the plaintiff has a claim against the defendant and that defendant bank gave plaintiff credit on account of any payment of interest, then six years would have to elapse from the said payment be*52 fore plaintiff’s claim can be barred by the statute of limitations, even though the statute of limitations would begin to run against the plaintiff prior to his demanding payment of claim he had against the defendant.”
It is not clear what a credit of interest on the deposit would have to do with tolling the statute of limitations under conditions disclosed by the record. It does not begin to operate against one who deposits money in a bank until his demand for the same has been refused. It is common knowledge that individuals leave money on deposit in banks for long periods of time beyond the six years prescribed in which an action for money may be instituted; yet no one would pretend that the statute of limitations had barred a claim for a deposit unless a demand for the same had been refused and the period had afterwards expired. The instruction in that respect is harmless for it does not disturb the principle that a demand must be shown before the statute begins to run.
In brief, it was error to admit in evidence the circular and the Booth letter because it was not shown that they were authorized by the defendant. Neither would they excuse the plaintiff from his duty either to avow or reject the account provided he had knowledge of the facts upon which it was based. It was error to state to the jury as a matter of law that the transactions between Sheridan and the plaintiff were necessarily binding upon the bank, because it omits the possibility that the plaintiff dealt with Sheridan as an individual, of which there was some evidence. It is elementary that where there is testimony supporting the theory of either party it is incumbent upon the court to leave the question to the jury under proper instructions and a charge which ignores such a situ
The principal questions involved in this appeal have been settled in the cases of Chapman v. First Nat. Bank, 72 Or. 492 (143 Pac. 630, L. R. A. 1917F, 300); Byron v. First Nat. Bank, 75 Or. 296 (146 Pac. 516); De War v. First Nat. Bank, 80 Or. 260 (156 Pac. 1038); Wells v. First Nat. Bank, 80 Or. 329 (157 Pac. 145); Carlon v. First Nat. Bank, 80 Or. 539 (157 Pac. 809); Verrell v. First Nat. Bank, 80 Or. 550 (157 Pac. 813).
The conclusion is that the judgment must be reversed and the cause remanded for further proceedings.
Reversed and Remanded. Rehearing Denied.