98 Neb. 354 | Neb. | 1915
Tbis is an appeal by tbe Packers National Bank of South Omaha from a judgment of tbe district court for Sarpy county in favor of tbe defendant, in an action on a promissory note. Tbe note is made payable to plaintiff, is dated
There was service of summons on the defendant Rnshart only. He admitted the execution of the note, but alleged want of consideration, claiming that he is a mere accommodation maker. He alleged that Frank J. Moriarity, who had been cashier of plaintiff bank for a long term of years, but who died before the making of the note in suit, had become interested in a coal mining property in Oklahoma, and that he was desirous of borrowing the money of the plaintiff bank without the knowledge of the other officers of the bank; that, beginning in 1907, from time to time, the cashier honored the drafts of the parties operating the mine, and this defendant gave his notes to the bank to cover the amounts thus advanced; that he had induced defendant to sign these notes on the express promise that he would not be held liable upon any note which he might sign; that the drafts were paid and the money advanced prior to the making of the note given to cover the amount of any draft; that at the time of the cashier’s death these notes had all been merged into the one note of $11,500 ; that this note, like the notes preceding it, was made at the request of the cashier, and with the agreement that he would hold defendant harmless; that there was no consideration therefor, and that it was made for the accommodation of the plaintiff; that the plaintiff was in possession of all the facts at the time the note was signed, and the plaintiff advanced no sum whatever on account of said note or as a consideration therefor. By reply these matters were put in issue, and it- is alleged that the money was loaned to defendant and C. P. Moriarity and the Mohawk Mining Company, a copartnership composed of defendant
It is insisted that the court ought to have directed a verdict in favor of plaintiff, and this makes it necessary to consider, somewhat at length, the evidence in the case.
The record discloses that, prior to the loaning of any money by plaintiff, one E. B. Rushart (also spelled Ruysschaert), a brother of defendant, and one Bonnert were operating a coal mine in Oklahoma, and this defendant was living at Port Crook, Nebraska, and intimately acquainted with plaintiff’s cashier. Through the efforts of defendant the cashier became interested in the mine, and he caused an investigation of the property to be made, with the result that, December 22,1906, Rushart and Bonnert made a bill of sale conveying the mining property to defendant and Charles P. Moriarity, a brother of the cashier. January 2, 1907, defendant and his brother, E. B. Bushart, and plaintiff’s cashier and his brother entered into a written agreement, whereby it was provided that when all indebtedness of every character whatsoever, existing against the old firm of Bushart & Bonnert, and when all indebtedness of every character whatsoever against the new firm, composed of George P. Bushart and Charles P. Moriarity, should be paid, and when all indebtedness existing by virtue of their operation of the mine, and the balance due to Pred Bonnert on account of his contract with plaintiff’s cashier should be paid, all of the rights and privileges formerly held by the firm of Bushart & Bonnert, “and now temporarily held by Charles P. Moriarity and George P. Bushart, and all of the machinery and other personal property and assets of every description now being used in the mining of coal on the north half of northwest quarter, section 22, township 20 north, range 13 east, in Indian Territory, shall be held by Prank J. Moriarity of Otnaha, Nebraska, and George P. Bushart of Omaha, Nebraska, and Edward B. Bushart (spelled Buysschaert) of Tulsa, Indian territory, owners in common, each of said parties owning an equal undivided one-third of all of the
“The above facts and conditions admitted and accepted by me. Charles P. Moriarity.”
It is undisputed that the only money that was ever put into this enterprise by the defendant or either of the Moriaritys belonged to the plaintiff bank, being advanced from time to time as needed, and that the whole sum was finally merged in the note in suit. Part of the time the notes were signed by George F. Rushart alone, and part of the time by George P. Rushart, C. P. Moriarity, and the Mohawk Mining Company, the firm name under which they operated. It is also undisputed that the cashier, one of the parties to this enterprise, was the only officer of the plaintiff bank in any way interested in the enterprise, and that no other officer of the plaintiff had any knowledge whatsoever of the transactions. Defendant evidently had good credit at the bank, for he testifies: “A.. Well, Mr. Moriarity let the Mohawk Mining Company have the money. He wanted me to sign those notés so his people there in the bank wouldn’t catch on to it.” He says that he signed the notes at the request of the cashier; that he received no money at the time of signing; but it is conceded that the money went into this mining venture. “Mr. Moriarity told me there was drafts from Oklahoma on him- direct; that is, my brother and his brother — he said he paid a couple .of those drafts, and he wrote a letter to him not to draw that way any more — that he better draw on me; that the people in the bank had full confidence in me and would not question anything I done; that if the money was loaned through
“A corporation is not chargeable with the knowledge nor bound by the acts of one of its officers in a matter in which he acts in behalf of his own interests, and deals with the corporation as a private individual, and in no way represents it in the transaction.” Buffalo County Nat. Bank v. Sharpe, 40 Neb. 123.
There is no disputed question of fact to submit to a jury.
Defendant knew at the time the money was borrowed that the cashier was making the loan without the knowledge or authority of any other officer of the bank. He knew that it was going into this private enterprise in which defendant and the cashier were interested, and plaintiff is not bound by the promises of the cashier to hold defendant harmless.
It being proved beyond question that the money loaned by the bank was received by the Mohawk Mining Company, of which this defendant was a copartner, and that this defendant knew at the time of making the various notes, and at the time the money was advanced, that the cashier of the plaintiff was engaged in a private enterprise which he was concealing from his principal, and this defendant having a contingent beneficial'interest in the enterprise, he will not be permitted to offer the statements or promises of the cashier to defeat payment of the note. The court should have instructed a verdict for the plaintiff. The judgment of the district court is reversed, with directions to enter judgment for the plaintiff.
Reversed.