Winsor v. Lafayette County Bank

1. Banks — Acts of Official Agents — Agency.—A banking corporation, of course, acts through its official agents, and is held strictly to the contracts made in the name of, and on behalf of, the corporation. But the acts of officers must be such as are in the line of them duty or agency. It is not among the ordinary duties of a cashier to bargain and sell real estate, nor to contract with brokers for that purpose, and a bank will not be bound by it unless previous authority be shown, or unless estopped by a line of conduct recognizing such acts. ¡8. - Ratification. — There can- be no ratification of an act without knowledge of the act having been done. The ratification of an act previously unauthorized must, in order to be binding, be made with a full knowledge of,tall the material facts. Baldwin v. Burrows, 47 N. Y. 211. ■8. - Course of Conduct — Effect of. — A corporation may, by a course of conduct with its officers and the public, give them authority and confer upon them powers they would not have as such officers but for the usages of the corporation.

Appeal 'from Lafayette Circuit Court, Hon. John P. Strother, J. Statement of case by the court. The plaintiffs are real estate agents and sued defendant for one hundred dollars commission alleged to have been earned by them in negotiating a sale of real estate, belonging to defendant in Lexington, Mo., to Mrs. Ada Young. Plaintiffs claim that the property had been put in their hands for sale by Joseph Wilson, the cashier of the bank, he agreeing to pay them commission for any sale they might negotiate. That shortly thereafter they did negotiate a sale to Mrs. Young and claimed the commission in the sum of one hundred dollars. It was not denied by the cashier that he did put the property in the hands of the plaintiffs, but it was asserted by him that he made the sale, and that it was not made or assisted by the efforts of plaintiffs. At this time George Wilson, Robert Wilson, Joseph A. Wilson, T. C. Wood, and J ohn Wilson were the directors of the bank. George being president, Robert vice-president and Joseph cashier. At the time, September, 1882, George Wilson was absent in Europe, and John was in California — leaving only Robert and Joseph Wilson, and T. C. Wood, in Lafayette county. The evidence tended to show that plaintiffs’ employment, their claim of having made the sale, and demand for compensation was unknown to any officer excepting the cashier. There was no entry in any book of the bank of the employment of plaintiffs or of the sale of the property. The deed was made out and signed by the vice-president, Robert Wilson, and upon return of the president was likewise signed by him. The cashier disclaimed owing plaintiffs ; and each of the other officers testified they knew nothing of his employment, nor did they, or either of them, individually or officially, ratify the contract and agreement alleged to have been made by the cashier. The following rules and bylaws of the bank were .introduced in evidence. “ Rule 15. — Duties of the cashier. It shall be the duty of the cashier to sign all certificates of stock, checks, bills of exchange and certificates of deposit. He shall take into his custody, at this bank, the funds, and the books, and the papers of the bank; he shall attend all meetings of the board, keep a regular record of its proceedings, furnish official abstracts therefrom, and give all such information as may be required by the board or any committee. He shall correspond, as the organ of the board, with all corporations or persons doing business with this bank, on subjects connected with his department. He shall superintend the general and individual accounts of this bank, lay before the directors once a week a general statement of the accounts of this bank, and generally shall perform all such other services as may be required of him by the board. “Rule 12. — Committees and their duties. At each semi-annual settlement of the accounts of this bank a committee of three directors shall be appointed by the board, and it shall be the duty of such committee to examine into the general condition of the bank, and to examine and compare with the books all bills discounted, and other property of the bank, which examination shall be full and complete, wherein shall be brought for comparison all vouchers for money paid out for'any account whatever, not less than once in every three months. A committee of three directors shall be appointed by the board to count all moneys on hand and all cash items. Both of the above committees shall report to the board. “Rule 9. — Meetings of the Board. Regular meetings of the board shall be held at the banking house of this bank on every Tuesday and Friday, at 12 o’clock in., for the purpose of passing on such paper as may be offered,, and for the transaction of general business. The president, or in his absence the cashier, may call special meetings of the board at the request of any three members, or at his own discretion. At all meetings of the board three members shall be required. to compose a quorum.” That whatever other real estate sales had been made by the bank were ordered by the board of directors and were entered of record in the books of the bank, except this sale. On the trial the following instructions were given for the plaintiffs: “2. If the jury believe from the evidence that the property described in plaintiffs’ petition was placed in the hands of plaintiffs as real estate agents, for the purpose of effecting sale thereof, by Joseph A. Wilson, cashier of defendant, and that plaintiffs negotiated a sale to Addie Young, purchaser, with the knowledge of defendant, its officers or those in control of its real estate, with authority to sell it, or to transact, under its bylaws, its general business, and reported same to defendant, and that said defendant confirmed and ratified said sale with knowledge that plaintiffs had made it by executing a deed to the purchaser, then defendant is liable to plaintiffs for commission on said sale, although they may believe from the evidence that the employment of plaintiffs by said cashier to make such sale was without authority from defendant in the first instance. “3. That although the jury may believe from the evidence that defendant had negotiated with Addie Young for the sale of said property, and had offered the same to her for the sum of one thousand eight hundred dollars if accepted within a limited time, yet, if the jury believe from the evidence that said offer had not been accepted within such time, and that at or near the expiration of such period of time the said property was placed in the hands of plaintiffs by its cashier, Joseph A. Wilson, for sale at an advance of two hundred dollars over and above the price at which it had been offered to said Ada Young, and that plaintiffs negotiated a sale of said property with the knowledge of defendant or its officers having authority by its bylaws, as shown in evidence, to sell and convey real estate or transact its general business, and reported the sale by plaintiffs at such advanced price to defendant, and that said sale was ratified and confirmed by said defendant by executing and delivering a deed in conformity thereto, with knowledge by the officers so ratifying, that plaintiffs had been employed by said cashier and had made said sale, then the jury will find for plaintiffs, the reasonable value of their services formating such sale not exceeding the sum of one hundred dollars, although such sale was made by plaintiffs to said Addie Young. “4. The court instructs the jury that if they find, from the evidence, the property in dispute was placed in the hands of plaintiffs, as real estate agents, for sale, by Joseph A. Wilson, cashier of defendant, and that the plaintiffs made the sale to Ada M. Young, and that the same was made with the knowledge of defendant or its officers, with authority as stated in other instructions, and that with such knowledge of defendant or its said officers said sale was ratified and confirmed by the execution of the deed to the purchaser, then it is not necessary that such ratification should be by formal resolution or entry in writing on the record of defendant.” Among other instructions given at the instance of the defendant was the following: “8. The mere fact that the president and vice-president of the bank executed the deed to Ada Young, and that the bank received the two thousand dollars therefor, is not of itself evidence of a ratification by the bank of any contract made by said cashier with said Winsor for commissions upon the sale of said property.” The defendant also asked the court to grant the following instructions: “6. The court instructs the jury that upon the pleadings and evidence you must find for defendant. “7. The court instructs the jury that by the plaintiffs’ petition they sue upon a contract therein averred to have been made by the bank through its cashier, and the plaintiffs must prove an original authority in said cashier to make said contract with plaintiffs for said commissions, and the jury cannot consider any facts that would go to show that the bank afterwards adopted said cashier’s contract, the plaintiffs not having pleaded any ratification of said cashier’s contract for commission to said Winsor.” The trial resulted in a judgment for plaintiffs and defendant appeals. I. The court should have granted the instruction asked by defendant — numbered six — for the same reason that it should have granted the motion for a new trial, viz.: that the verdict was against the evidence and against the instructions. The sale was not effected through the services rendered by plaintiffs for defendant. II. The cashier had no authority to bind the corporation to pay commissions, and by no subsequent act was such unauthorized contract of the cashier ratified. Neither the statutes of the state nor the by-laws of the bank give the authority to the cashier, but prohibit it except to the directors, and the general principles of law do not contemplate that the cashier of a bank can so bind the bank. Sav. Ass’n v. Sailor, 63 Mo. 27; United States v. BJc. of Columbus, 3 Miller (U. S.) 28; BJc. of United States v. Dun, 6 Peters (U. S.) 59; ShryocJc v. Baschore, 82 Pa. St. 159 ; Bicev. Peninsular Club, Sup. Ct. Mich. 1883, Vol. 17, N. W. Rep., No. 10, p. 708. III. The execution of the deed was not a ratification. The evidence shows that the vice-president signed it, but that was no execution of the deed by the bank. Afterwards the president executed the deed, but he had no thought of adopting any act of the cashier in that behalf, and plaintiffs’ connection with the sale was not even mentioned to him. The ratification must have been made by a majority of the directors, and with a full knowledge of the facts. Keeler v. Salisbury, 33 N.Y. 653 ; Baldwins. Burrows, 47 N.Y. 211; Moorés Exec'r v. Patterson, 28 Pa. St. 505; Amory v. Hamilton, 17 Mass. 103 ; Mixon r. Palmer, 8 N.Y. 398. I. When there is any evidence to support a verdict and judgment the appellate court. will not disturb it because against the weight of evidence, nor for the admission of incompetent evidence when it is seen to be immaterial. There must be an absolute failure of evidence to warrant reversal. Russell v. Berkstresser, 77 Mo. 417 ; Birney v. Sharp, 78 Mo..73 ; Combs v. Smith, 78 Mo. 32; Roe v. Ferguson, 72 Mo. 225 ; Price v. Evans, 49 Mo. 396 ; Penn v. Lewis, 12 Mo. 161. II. It is well established law that on a suit by real estate agents for the amount of their commissions, it is immaterial that the owner sold the' property and concluded the bargain, if the sale was effected through the exertions of the agent. Tyler v. Parr, 52 Mo. 249 ; Bell . Cilstrap, 45 Mo. 419. The corporate seal gives the assent of the corporation. Shusalter v. Pirner, 65 Mo. 218; Haven v. Adams, 4 Allen (Mass. 80).