61 N.H. 589 | N.H. | 1882
The defendants' cashier had no authority to make the guaranty, and there was nothing in the acts, conduct, or course of business of the defendants' officers, by which he was held out as having authority to make it. The guaranty itself being false and a fraud upon both parties, the cashier undertook to cure one fraud by committing another, and recorded a false vote of authority to make the guaranty, and certified the false record to the plaintiff.
Had the forged record been a true one, had the directors voted as the record and certificate declared, or had they made the guaranty *592
themselves, the defendants could not have been bound by their action, for a guaranty of that kind would have been beyond the scope of their powers. The power of corporations is limited by the purposes for which they are created, and which are named in the charter or act authorizing their existence. National banks derive their powers from what is known as the national banking law (Act of Congress, June 3, 1864, Rev. St. U.S., title, LXII), declaring that any association organized under the act shall be a body corporate, and "may exercise by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as may be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of this title." Real estate may be purchased and held for immediate accommodation in the transaction of business, and received in the collection of debts, and as security for previous indebtedness. Rev. St. U.S., ss. 5136, 5137. The power given by the law is to carry on the banking business, and includes such incidental powers as may be necessary to effect that object. It is nowhere mentioned that a bank may guarantee the performance of written contracts made for other purposes than the payment of money or the transfer of securities. If, in the course of their business, the bank find it necessary to endorse for transfer, or otherwise specially guarantee negotiable commercial paper (People's Bank v. National Bank,
The plaintiff claims that the defendants are liable, because it was the duty of their cashier and clerk to record the votes and official acts of the directors, and the bank are bound by the false record as if it were true; or that the plaintiff in good faith parted with her property, relying upon the strength of the record and the guaranty, and the defendants are estopped from denying the truth of the record and the validity of the guaranty. The doctrine that principals are bound or made liable for the wrongs done by their agents or servants is confined to cases where the acts complained of, or relied on, are done in the employment of the principal as a part of the ordinary business of that employment, or are authorized or directed by the principal, or in some way ratified and adopted by him. Acts, though done by an agent or servant, unauthorized and unratified, and not being within the scope of the employment, nor a part of the ordinary business of the principal, cannot *593
bind him nor make him liable; and the doctrine applies with special force to corporations, the business of which can be carried on only through the medium of agents. A. A. Corp., ss. 310, 311; Ad. Torts, s. 1197; Martin v. Great Falls Mfg. Co.,
The fact that it was a part of the duty of the cashier to record the acts and votes of the directors, does not make his false record and certificate binding upon the bank. The cashier is not a public officer within the meaning of the term, appointed by the public to make and certify records, and whose duties are defined by law. If he was held out by the defendants as their agent to record and show the acts of their officers, the plaintiff was not relieved of the duty of making inquiry into the legality and want of authority of the acts. The doctrine, that of two innocent persons defrauded by a third, he shall suffer who has enabled a delinquent to commit the fraud, has no application here, where the act constituting the fraud was no part of the cashier's duty nor the defendants' legitimate business, and where the plaintiff neglected to make the necessary inquiry for ascertaining the validity of the act.
The doctrine of ultra vires is not usually applied where the party setting it up has received a benefit from the unempowered and unlawful act relied on as a defence. Rich v. Errol,
Case discharged.
SMITH and CARPENTER, JJ., did not sit: the others concurred.