Plaintiff is a corporation, and had a mine at Tombstone, and operated a mill at Contention, about 10 miles distant from its mine. The business at the mine was transacted under the name of “The Western Mining Company,” and the business at the mill by the name of the “Contention Mill & Mining Company.” Defendants were bankers, who received the deposits of plaintiff, and paid out the same on plaintiff’s orders in the ordinary course of business. D. J. Bousfield was in charge of said mill, and transacted the business connected therewith. On the eighth day of August, A. D. 1881, a draft or order,
“2,737.50. Contention Mill, August 8, 1881.
“Contention Mill & Mining Company: Pay to the order of Charles G. Young, two thousand, seven hundred and thirty-seven and 50-100 dollars, for 365 cords of wood, at 7%, payable September 5, 1881, and charge the same to mill account. D. J. Bousfield.
“To J. H. White, Esqr., Supt. Contention Mine, Tombstone, A. T.”
—Was presented to defendants at their banking-house at Tombstone, by one Howard Robinson, at that time in the employment of plaintiff, and defendants were requested by said Robinson to discount the same. It was admitted by plaintiff that said draft was in usual form of drafts drawn by the superintendent of the mill on the superintendent of the mine. J. H. White was said superintendent. Such like drafts had from time to time, in the usual course of business between plaintiff and defendant, been cashed and discounted by defendant, and ratified by plaintiff in its settlement with defendants.
At the time of the presentation of the draft said White was absent from the territory, and Mr. A. P. Wade was the book-keeper for the Contention mine. Mr. M. B. Clapp, the general manager of the bank, testified that on said eighth day of August, 1881, Mr. William B. Murray came into the bank with Mr. Robinson, and introduced him, saying, “This is Mr. Robinson, the book-keeper at the Contention mill;” that at first he declined to discount it, as he only cashed such drafts for regular customers; that after-wards Robinson returned with Mr. Wade. He said to Wade, “This draft is for an unusually large amount,” and wished to know if it was all right. Wade replied: “Oh, yes; that is all right. We will pay it on the fifth. I will give you a check now, but I don’t wish to run my account low. The mine may need more money, and I do not wish to be obliged to draw a draft on San Francisco.” Witness further .said to Mr. Wade: “Do you know that this wood is all right?” Witness said: “Do you know the payee? I think it was Young.” He said: “Oh, yes; it is all right.
This action was brought for the sum of $1,641.32, for money had and received; and, by way of counter-claim, defendants set up payment of said draft, and asked for judgment for $1,096.18, over and above the sum sued for, with interest, etc., and obtained judgment for $1,250.97, principal, and interest, etc., on said judgment. The case comes here on appeal from the judgment, and from order denying plaintiff’s motion for a new trial.
The first contention of plaintiff is that there was no acceptance of said draft by plaintiff.. We do not deem it necessary in this character of case. We adopt the language of brief respondent: “Bousfield was in charge of the mill, and authorized to purchase fuel and other supplies for the use of the mill; and by such sale, and the purchase by Bousfield, the liability of the company was created. The office of the order was merely to inform the corporation of the indebtedness, and what it was incurred for, and to designate the person to whom it was paid. The purchase was made by the corporation through Bousfield as its agent. No liability to parties selling wood accrued against Bousfield, nor was he personally liable as the drawer of the draft or order, his agency being known.” Hicks v. Hinde, 9 Barb. 528. See, also, Mobly v. Clark, 28 Barb. 390; Hasey v. White Pigeon Beet Sugar Co., 1 Doug. (Mich.) 193. The corporation was therefor liable without acceptance.
In Dennis v. Table Mt. Water Co., 10 Cal. 370, where the
But, say appellants, this argument will not apply, because it is admitted this draft is a forgery. The foregoing is an answer to their argument that an acceptance was necessary to bind the company. The fact of Bousfield’s employment, and giving drafts for wood, etc., coupled with the fact that Wade, another employe, informed defendants that the wood was furnished, goes far to show the particularity which defendant required before discounting the draft, and its desire to guard against all contingencies; and as we hold no acceptance was necessary, its genuineness must be inquired into on its being discounted by the bank, and such inquiry was made of him whose business was to examine into their genuineness, and to pay the same. What more- could be asked of any one discounting this draft?
The further contention is made by appellants that Wade had no authority thus to bind the company. Let us see. The testimony is that Mr. White opened an account in the name of the Western Mining Company, and did the usual course of business of a'mine with this bank; drew drafts on San Francisco; checks to pay their debts; until, a month or two after he opened his account, he notified the bank to honor the signature of Joseph H. White, per A. P. Wade. The manager of the bank testifies, in effect, that Mr. Wade took the place of Mr. White. He drew his cheeks, and paid the
“When the agent acts beyond, or even in direct opposition, to his express authority, but within the scope of his implied authority,—that is, within the apparent authority conferred upon him, or appearing from a prior course of dealing with or on behalf of his principal, or from any other mode of his being held out to the world as appearing to possess the authority,—and the principal is personally innocent of any fraud, the principal cannot acquire and retain any benefit obtained, under such circumstances, from the fraud, representations, or concealments.” 2 Pom. Eq. Jur. 399. Wade was not guilty of any designated fraud, but his representations of the genuineness of Bousfield’s signature was the injury inflicted upon the bank, and his principal must therefore be answerable. His apparent con
The judgment and the order denying motion for new trial are affirmed.
Shields, C. J., and Barnes, J., concurred.