Metzger v. Southern Bank

54 So. 241 | Miss. | 1910

Whitfield, C.

We have critically and carefully examined the facts in this case, as well as all the authorities cited touching the law. It would make too extended an opinion to set out in detail even the controlling facts in the record. The reporter is directed to do this carefully. We will simply announce our conclusions as to the matters of fact and law involved.

We think the evidence abundantly shows that Rushing was not only the director and cashier of the appellee bank, but on the facts of this case its general agent. The bank was in process of liquidation, and he had all the power and authority, not only of a cashier, technically so considered, but very much more power. He was in general charge of all the affairs of the bank, with full authority to manage and control the same, in the process of liquidation. A careful survey of all the evidence touching the extent of his authority must lead to this conclusion. On this state of the case, his knowledge of the transactions with Metzger is imputable to the bank. The appellee bank is bound by his action. One of the fundamental errors running through the instructions given for the appellee in the case, seems to have been the impression that a corporation was bound only by those acts of its agents which have been authorized in express terms by its board of directors. This, of course, is not the law. The corporation is as much bound as a natural person by duly implied authority of its agents, as well as by .authority expressly given; and a corporation is governed, like an individual, by the same principles as to the ratification of the acts of its agents and as to estoppel in pais. It was distinctly held in the case of Carey v. Cain, 70 Miss. 628, 13 South. 239, that agency for a corporation may be proved, and authority to act for it implied, just as in the case of natural persons. And see the reasoning in Rivers v. Yazoo & Mississippi Valley R. R. Co., 90 Miss. 196, 43 South. 471, 9 L. R. A. (N. S.) 931. See, also, the following, amongst many other authorities: Birmingham Trust & Savings Co. v. Louisiana Bank, 99 Ala. 379, 13 South. 112, 20 L. R. A. 600; Bank v. Howe, 40 Minn. 390, 42 N. W. 200, 12 Am. St. Rep. 744; Bank v. McAnulty, (Tex. Civ. App.), 31 S. W. 1091-1095, 1096, 1097; Morse on Banks and Banking (4th. Ed.), § 166, and cases cited in note 3, page 371, and various other authorities, which are quoted in. the admirable brief of the learned counsel for the appellant. On the facts of this case, the knowledge of Rushing was clearly the knowledge of the bank, within any correct statement of the rule on this subject to be found in the books. It follows, from these facts, that the following instructions given the appellee were erroneous, and should not have been given: Instructions No. 15, 18, 19, and 23.

In the course of the trial the court excluded the testimony which had theretofore been given of the date of the death of the mother of the appellant. The testimony showed plainly that this suit was not brought until within an exceedingly short time after her death. It was further shown that the appellant inherited valuable property from his mother. This, also, was error. This testimony was a material factor in determining the question of ratification or estoppel, as applied to the conduct of the appellee under all the testimony in this case.

The great difficulty with the ingenious and learned argument of the counsel for appellee is that it stresses too much the naked technical power of a cashier, considered simply as a cashier, and fails to look at the real power and authority in its full scope, which the evidence in this case plainly shows Rushing had, which was very much more than mere technical power usually exercised by a cashier. On the evidence in this case, Rushing was manifestly the general agent of the appellee.

We notice no other assignment at this time. What we have said indicates the course the case should take on a new trial. Reversed and remanded.

Per Curiam. For reasons set forth in the above opinion, the judgment is reversed, and the cause remanded for a new trial. i