170 Wis. 197 | Wis. | 1919
Lead Opinion
Plaintiff makes some attack on the findings of fact which we deem not well taken because there is practically no dispute in the evidence and it sustains the findings made. He further claims that notice to Peterson that he did not own the mortgage was notice to the bank of that fact and hence the money deposited by Peterson from the proceeds of the release was known by the bank not to belong to Peterson and it should not have allowed him to check it out for his individual use. That in doing so it became liable to plaintiff for the amount. This claim seems to be based upon the idea that in releasing plaintiff’s mortgage Peterson was acting in behalf of the bank and was transacting the
By the Court. — Judgment affirmed.'
Dissenting Opinion
{dissenting). The vendors and vendees of the real estate in question, desiring to clear the title of it from both the first and second mortgages, went to Peterson, an official of the bank, with reference to such entire purpose.
While acting as such official of the bank Peterson was bound to know, both in his individual capacity and in his official capacity, if the two must be considered separately, that a payment in full of the first mortgage could not be safely made by the persons dealing with him except and unless payment was made to the person having physical possession of the note and mortgage. Bautz v. Adams, 131 Wis. 152, 157, 111 N. W. 69; City Bank v. Plank, 141 Wis. 653, 659, 124 N. W. 1000.
The note and mortgage had been sent by Peterson to the plaintiff and were then held by him. Peterson, knowing these things and that the bank was not entitled to its second mortgage until and unless there was a release of the first mortgage, permits the funds of the bank to be used for the purpose of clearing the title and permitting the bank to get its money. The bank accepts the benefits of the transaction performed by its agent, receives its money in effect ahead of the first mortgage, and ought not to be permitted to separate that which was one indivisible transaction into two. The bank was chargeable with knowledge that Peterson was engaged in the real-estate business on his own behalf and so dealing while also an official of the bank. Having permitted
There seems a substantial difference between the facts in the case at bar and that disclosed in the case cited in the majority opinion of In re Plankinton Bank, 87 Wis. 378, 58 N. W. 784, for in that case there was no intermingling of the private transactions of the officer with those done in his capacity as an officer of the bank. The bank there was not, as here, interested at all in the results of such transactions.
I think the case is ruled in favor of the plaintiff by the decision in Mitchell St. State Bank v. Schaefer, 169 Wis. 543, 173 N. W. 330. See, also, Union Inv. Co. v. Epley, 164 Wis. 438, 160 N. W. 175; Tesene v. Iowa State Bank (Iowa) 173 N. W. 918.
The plaintiff should have been allowed to recover the full amount claimed.