Wilson v. Rogers

1 Wyo. 51 | Wyo. | 1872

By the Court,

Carey, J.

The first error assigned in this case is that the district court erred in rejecting the evidence offered to the jury to sustain the issues on the plaintiff’s part. Though it does not appear in the record upon what grounds the objections were made to said evidence by the defendant, we are of the opinion that the court was right in refusing to allow the questions to be answered. In the asking of each of the questions it is assumed it had been proved that H. J. Rogers, the defendant, had received money from the plaintiff, to be paid over to the First National Bank of Cheyenne, as payment of an assessment on a certain amount of capital stock of the said bank, for which plaintiff had theretofore subscribed.

The testimony of Mr. Wilson, and the check and receipt offered in evidence, show that Mr. Wilson paid the instalment on the capital stock of said bank, not to H. J. Rogers, as his agent or bailee, but to the said bank, as directly as money can be paid to any corporation. The check given was drawn in favor of said bank, and was collected by said bank in the usual manner of making such collections, and is indorsed, not by H. J. Rogers as a principal, but by H. J. Rogers as cashier of said bank, per Wild. Nowhere in the evidence does it appear that Mr. Wilson made Mr. Bogers his agent or bailee, but in his payment of assessment on the capital sto,ck of said bank that he transacted his business directly with said bank in payment of said money to an officer of the bank. The bank, by its officers, had therefore made an assessment on its capital stock, and Mr. Wilson, being a stockholder, paid the amount due on his assessment to said bank, and if the latter, through any of its officers, failed to appropriate the money to the purpose for which it was intended, and Wilson was damaged, the remedy is against the bank. It is true, as contended by counsel for appellant, that if an agent transcends his agency, or departs from its provisions, or conducts himself so as to rénder his principal inaccessible or irresponsible, or if he acts in bad faith, he makes himself personally liable : Parsons on Cont. 64.

We cannot see how this principle can apply in this case. The petition upon which this cause was tried does not allege that the defendant was the agent of any one, but that he as principal for consideration promised and undertook to do what is therein alleged. While the proof offered shows that -when he received said sum of five thousand dollars, he received it as cashier of the First National Bank of Chey.enne. It is a well-established principle that the proofs must correspond with the allegations in the petition. In this case they are wholly at random with its allegations. Again, it is contended that the appellee’s personal responsibility is fixed by the fifty-third section of the national banking act, thirteenth volume United States statutes, page 116. This section provides that if the directors of any association (national banks) shall knowingly violate or knowingly permit any of the officers, agents or servants of the association to violate any of the provisions of the act, * * every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders or any other person shall have sustained in consequence of such violation.

We fail to see how this provision of the banking laws of the United States can be made applicable in this ease. It is not alleged in the petition upon which the case was tried: 1. That the directors of the First National Bank of Cheyenne violated or permitted to be violated any of the provisions of the banking law; or, 2. That H. J. ."Rogers, the appellee, was a director,in said bank, or that he participated or assented to the violation of any of the provisions of the said law, all of which requisites would be necessary to sustain an action under the section named.

We are of the opinion that the district court, under the evidence, was correct in its instructions to the jury, and very properly overruled the motion to set aside the verdict of the jury and grant a new trial.

Judgment affirmed.