87 Wis. 378 | Wis. | 1894
1. It is perfectly well settled that the mere fact that an officer of a corporation acquires knowledge of facts when not acting for it does not charge or affect the corporation with knowledge of those facts in any transaction between such officer and the corporation in respect to which he acts solely for and represents his own interests. "Where an officer or agent of the corporation himself deals with the corporation, it will not be charged with notice of the information which he possesses relating to the transaction, and which he does not disclose; for the reason that in such case he does not represent the corporation, but is acting for himself, and ceases, pro hac vice, to act as an agent of the corporation. The corporation, in such case, is' in
The cases relied on by the appellant’s counsel really sustain this conclusion, and it is decisive of the case. If, in making the deposits in question, Day, as president and general manager, had in fact represented and' acted for the bank, instead of its tellers, and for himself as well, the bank would have been affected and charged with notice of his wrongful use of the funds in question. Such, in substance, was held in the case of Atlantic Cotton Mills v. Indian
The fact that Day conducted a loan business, collected moneys for others, deposited only in the Plankinton Bank, and kept no separate account, was not of itself notice to the bank that he was violating any fiduciary or trust relations in the conduct of his business, or that he did not promptly pay oyer to the proper parties all moneys received by him in a fiduciary capacity.
2. It is not made to appear by the agreed statement that William Plankinton, as assignee of the Plankinton Bank, took or received or owns or holds, in his capacity as as-signee, any property or assets of any kind into which the moneys, or any part thereof, collected by Day for the petitioner, were converted; nor is it made to appear that the bank had any general fund or moneys which passed to the assignee by the assignment, into which the petitioner’s moneys were traced as forming a part thereof. The money in question having been collected by Day in a fiduciary character, and paid by him to his own account, the petitioner for whom he so collected it could follow it, and might have a charge on the balance, if any, in the hands of the bank, and so long as the trust property could be traced and followed into other property into which it had been converted, that would remain subject to the trust; and the court will go as far as it can in thus tracing and following trust money, but when, as a matter of fact, it cannot be traced, then the right of the real owner to follow it fails, for the right to so follow and trace it has its basis in the right of property. These views are in accord wdth and supported by the recent case of Nonotuck Silk Co. v. Flanders,
It is plain, for these reasons, that the petitioner has no claim whatever against the property and assets of the Plankinton Bank in the hands of its assignee.
By the Court.— The order of the circuit court is affirmed;