76 Wis. 259 | Wis. | 1890
The Grant Carriage Company was a corporation organized under the laws of Wisconsin, having its
The facts stated suggest two questions for consideration:
First. Might the carriage company have recovered from the defendant the amount of its funds so used in payment of the draft? The corporators of the carriage company had intrusted E. W. Grant with the keeping and care of the entire funds and property of the corporation, and had ostensibly clothed him with plenary power in the management of its business and the disposition of its funds. The defendant had no guardianship over E. "W. Grant, nor supervision over the business of the carriage company, nor the care of its funds, except in so far as it was intrusted with the same by Mr. Grant himself or those under his control and management. Such being the relations of E. ~W. Grant to the carriage company, and its money on deposit in the bank having been used in payment of the draft by such direction of himself and such approval by the carriage company, no good reason is perceived why the carriage company should be allowed to recover the amount of such payment from the bank, notwithstanding such direction and approval. As indicated, there is no evidence that the bank knew, much less connived at, the misappropriation. On the contrary, for aught that appears in the record, it might fairly have been inferred from such direction and approval that the draft was on account of the business of the carriage company. If the car
Secondly. The next question requiring consideration is whether the plaintiff, as receiver of the carriage company, stands in a more favorable position to recover against the bank than the carriage company itself. The plaintiff, as receiver, brought an action and recovered judgment against Fisk on account of the draft; thereby treating it as the property of the carriage company, and ratifying the transaction so far as he was able. This action was not commenced until more than a year after the appointment of the plaintiff as such receiver, and some fifteen months after such misappropriation. But the more serious difficulty confronting the plaintiff is the fact that it nowhere appears in the record that at the time of such misappropriation, or of such ratification, or of the appointment of such receiver, the carriage company was insolvent or indebted to anyone. The result is that we must regard the plaintiff as standing in the shoes of the carriage company, and as having no more right to recover, as against the bank, than the carriage company would have had. Even had it appeared-in the record that at the time of the appointment of the receiver the carriage company was insolvent, with creditors who became such subsequently to such misappropriation, still it would have been very doubtful about the plaintiff’s right to recover as against the bank. Farwell v. Metcalf, 63 N. H. 276; Haben v. Harshaw, 49 Wis. 379. If the plaintiff should make it appear that he in fact repre
By the Gourt.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.