EMMERLING v. FIRST NAT. BANK OF PEMBINA, N. D., et al., 97 F. 739

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. At the threshold of this case we find some very important facts established by uncontested testimony; among them these: That Mrs. Emmerling made a contract with Booker, as president of the bank, for the bank to take and handle her moneys and securities on certain terms, and that in pursuance of that contract she gave the bank an order on Andrews for the securities, and that the bank obtained the securities on that order. Those facts are not contested in the evidence.

Booker dot's not come forward to deny them, for the reason, as was stated at the bar, that he has fled the country to escape punishment for his fraudulent and illegal use of the funds of the bank, which brought about its failure. That the contract made by Mrs. Emmerling with Booker, as president of the hank, contemplated that the bank was to do much more than merely to receive the securities for safe-keeping, is shown by the terms of Mrs. Emmerling’s order on Andrews to turn the securities over to the bank. This order not only authorized the hank to receipt to Mr.

Andrews for the securities, bat “to make a full settlement with you [Andrews] for any business or other transaction previously done by you on my account.” Excluding the receipt, which we will consider later, the overwhelming weight of evidence is against the defendants’ contention that Mrs. Emmerling wittingly and knowingly revoked the bank’s agency, and withdrew her securities from its possession, and appointed Booker her agent, and turned the securities over to him individually. We are brought at once, therefore, to the consideration of the question whether the delivery of the receipt signed by Booker to Mrs.

Emmerling, under the circumstances detailed in the evidence, estops her from showing that she never did withdraw her securities from the bank, and place them in the hands of Booker. The fact being clearly established that the bank received and had possession and control of these securities for Mrs. Emmerling,. and as her agent, the burden of proof rested upon the defendants to show that this agency had been revoked, and the securities returned by (he bank lo Mrs. Emmerling. Mrs.

Emmerling did not go into the bank to make any change in the custody of her securities, but to indorse them in blank, for the purpose, as she supposed, of enabling the bank to collect them. Li is now’ apparent that the purpose of the bank officers in procuring these indorsements was to enable the bank, or its officers, to make fraudulent use of her securities, as was done. Down to the time these indorsements were made, Mrs. Emmerling had received no receipt from the bank for her securities. She was entitled io such receipt, and had a right to expect it; and when the president of the bank said to her, “Here, Mrs.

Emmerling, is your receipt,'’ site had a rigid (o suppose it was the receipt of the bank, and no one else. She had not delivered her securities to Booker, hut. (o the bank. She was impressed with the idea that her securities and money would be much safer in the bank than in 1he hands of any private individual. It was this notion that induced her to transfer the securities from Andrew’s to the bank. Booker was a stranger to her. She knew nothing about him or his responsibility.

It is highly improbable, therefore, that, after taking the securities from Andrews, and putting them into the possession of the bank for greater security, she would immediately take them out of the bank’s possession, and place them in the hands of an individual of whose'honesty and responsibility she knew nothing, and who, as subsequent events proved, was wholly untrustworthy.

She and her brother testified that the receipt was not read by or to her at any time; that it was handed to her in an envelope, and handed by her to her brother, who sealed the envelope, who took it to Ms home, and placed it in his safe, first making an indorsement on the envelope to the effect that it contained the receipt of the bank to Mrs. Emmerling for the securities. It is true, Ryan, the cashier of the bank, testifies that when Mrs.

Emmerling came into the bank he “delivered” the securities to her; but she did not go into the bank to have the securities “delivered” to her, but to indorse them, and, if they were handed to her at all, it was for that purpose. They were immediately spread out upon the table, and Ryan himself proceeded to instruct and direct Mrs. Emmerling where and how to sign her name to blank indorsements.

It is obvious that, if the papers were handed to her as testified to by Ryan, they were not “delivered” to her in the sense that she received them in execution of a purpose to revoke the agency of the bank, and take the papers out of its possession. If the papers were handed to her at all, it was not for any such purpose as that. The cashier could not have understood that the bank had ceased, to be Mrs. Emmerling’s agent, for he dealt and corresponded with her about the business connected with these securities in the bank’s name, and in his official capacity, for years thereafter.

The name of Booker was never used. Any other view lays the cashier open to the suspicion that, knowing that the individual receipt of Booker had fraudulently been palmed off upon Mrs. Emmerling as the receipt of the bank, he continued to carry on the business in the name of the bank and in his official capacity for the purpose of keeping Mrs. Emmerling from discovering the fraud. In a case where it was claimed that a paper had been “delivered” to a party, somewhat after the manner of the alleged delivery of this receipt to Mrs.

Emmerling, the supreme court of Vermont said: “This presents the question as to what is a delivery. It is, in its legal acceptation, something more then merely change of-manual capacity or possession. That may or may not be a delivery, according to the intent of the parties. It is a question of intent and purpose; of mutual intent and purpose, implying an acceptance as well as delivery.” King v. Woodbridge, 34 Vt. 565. This business was done in the bank, with an officer of the bank, concerning securities previously placed in the possession of the bank, and for which Mrs.

Emmerling was entitled to a receipt from the bank. The receipt was written in the bank, by an officer of the bank, with whom individually Mrs. Emmerling had never had any business relations whatever. It was written on a gorgeous letter head of the bank, and signed by the president of the bank.

Under these circumstances, few business men, to say nothing of an old lady having no knowledge or experience of business, would have thought it necessary to examine the receipt critically, even if it had been shown to them, to see if the president o'f the bank had followed his signature with the title of his office, which appeared at length and conspicuously at the head of the receipt. It is higMy probable that Mrs. Emmerling’s and Mr. Mager’s version of what was said and doné with reference to this paper is the true one.

But, however that may be, upon the evidence the court should have left it to the jury to say whether the bank had delivered the securities to Mrs. Emmerling, and she had accepted them with the mutual intent and purpose on the part of the bank and Mrs. Emmerling to revoke the bank’s agency, and to permanently withdraw the securities from its possession and control.

The court should have told the jury that, if the receipt was not read to her, and she was induced to take it in the belief that it was the receipt of the bank, then the fact that it was signed by Booker in Ms individual capacity would not prejudice her claim against the bank. Gases similar to this have frequently arisen, and the rule of law applicable to them is well settled. In the case of Strohn v. Railway Co., 21 Wis. 562, the plaintiff had a verbal agreement with the defendant railway company as to the terms of shipment of a quantity of freight.

The freight was delivei*ed to the railway company, and afterwards, upon demand, the company delivered to the plaintiffs bills of lading therefor. These bills of lading contained conditions of shipment inconsistent with the verbal agreement of the parties. The plaintiffs having' received and retained these hills of lading without reading them or knowing their contents, the railway company insisted that they were bound by the conditions contained in the bills of lading, which had been received without objection.

In answer to this contention, the court said: “Of course, possession of the paper by tbe party is evidence, more or less-strong, according to the particular circumstances, of his assent to the conditions contained in it. In most eases it may be absolutely conclusive. If it should appear that he examined it, and knew the contents, and then kept it, instead of returning it or offering to return it to the company, or notifying the company of his dissent, such acquiescence would, no doubt, be construed as conclusive evidence of bis assent.

But where the paper is not examined, and the contents not known, I do not think the same circumstances follow. Nor do I think that the. party is bound to examine the paper at once, and know the contents, and return it to the company, or give immediate notice of his dissent, at the peril of being held, concluded on the ground of acqui escence or neglect. Having previously entered into a special verbal agreement, he may rightfully assume, in the absence of notice to that effect, that it is embodied in the paper or receipt, or at least that the receipt contains' nothing contrary to it.

It is in the nature of a direct fraud or cheat for the company or its agents, after having entered into a verbal agreement, thus wrongfully to insert a contract of an entirely different character, and present it to the party, without directing his attention expressly to it, and procuring his assent. It is no answer for the company in such a case to say that the other party should have been more diligent and watchful, and should have detected the fraud.

So long as he is ignorant of the new conditions, and does not assent to them, the contract in writing is not consummated, and parol evidence may be received.” And to the same effect is Boorman v. Express Co., 21 Wis. 154.

And where the plaintiff took his money to a bank, and handed it to the cashier fox* deposit in the bank, and the cashier gave him a certificate of deposit in the name of a .firm in which the bank officers were largely interested, tbe coui't said: “When the plaintiff took Ms money to the First National Bank of Allentown. and handed it to the cashier for deposit, the bank became responsible therefor. The cashier was the executive officer of tlio bank, and authorized, by the very nature of his office, to receive money on deposit.

After receiving it, no trick or fraud on his part, by means of which the money was passed over to Blumer & Co., a. firm in which the bank officers were largely interested, and appeared to have had the control, could absolve the bank from its liability. No class of men have the confidence of the people to a greater extent than bank officers. Depositors do not deal with them at arm’s length, and can be imposed upon with the greatest ease by such officials. It would be monstrous to allow them to take advantage of the ignorant and unwary by reason of their position and the confidence which it inspires.

It was doubtless a misfortune to this bank to have unworthy officials, if such should prove to be the case. It certainly was unwise to permit its chief officers to occupy a dual position, with divided interests; but the consequences resulting therefrom cannot be visited upon those who dealt in good faith with the bank. It was error to reject the evidence contained in plaintiff’s offer. The facts offered to be proved amounted to a fraud upon the plaintiff, and he was entitled to have that question passed upon by a jury.” Ziegler v. Bank, 93 Pa. St. 397.

In a similar case against the same bank tlie court said: “We must assume that the jury would have found the facts as testified to by the plaintiff Steckel. The facts established, we have a case of palpable fraud. It is not an answer to say the plaintiffs ought not to have been deceived, and, with ordinary care, would not have been.

The fact that the Blumers were respectively president and cashier of the national bank, as well as leading members of the banking house of Blumer & Co., was calculated to mislead and deceive; and when told in positive terms that the certificates, although signed by Blumer & Co., were the certificates of the bank, the plaintiffs may readily have believed it was all right. * * * The question of fraud should have been submitted to the jury.” Steckel v. Bank, 93 Pa. St. 383.

And in a case where the cashier of a bank had signed his name to a receipt without the addition of the word “cashier,” and the money was credited to the cashier’s private account, and the bank denied liability, parol evidence was permitted to prove that in fact it was a bank transaction, and the court said: “A question is made that Pomeroy, by signing his name to the receipt for the $1,300 without the addition of the word ‘cashier,’ implied that it was his individual contract.

But, as it was dated at the bank, it was, at most, a case of doubt, upon the face of the receipt, whether it was a private or official act. In such a case parol evidence was admissible to show that it was an official act, though the money was credited on the books of the bank to the cashier’s private accounts. Mechanics’ Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, 5 L. Ed. 100. And it was properly left to the jury to decide, under the circumstances of the case, whether the contract was that of the bank or of the cashier in his individual capacity.

The evidence, on the face of it, therefore, predominates in favor of its being a bank transaction.” Caldwell v. Bank, 64 Barb. 350. Where tke lower court took a case from the jury, saying, “There was very little discrepancy in the testimony,” the supreme court reversed the judgment, and said: “The judge also tells us that there was very little discrepancy in the testimony; but where there is any discrepancy, however slight, the court must submit the matter to which it relates to the jury, because it is their province to weigh and balance the testimony, and not the court’s.” Barney v. Schmeider, 9 Wall. 248, 19 L.

Ed. 648. In the case at bar a peremptory instruction to the jury to find for the plaintiff would have accorded with the evidence much better than the instruction that was given. But the case should have gone to the jury, whose exclusive province it is to determine controverted questions of fact. The court erred also in instructing the jury that the plaintiff could not recover because the contract was ultra vires the bank.

Assuming that the contract by which the bank received the plaintiff's securities, and agreed to collect them and reinvest the money for five years, and accept as its compensation therefor all interest received in excess of 8 per cent., was ultra vires the bank, the bank is nevertheless under obligation to the plaintiff to return the securities, or account for their value. American Nat. Bank of Denver v. National Wall-Paper Co., 40 U. S. App. 646, 23 C. C. A. 33, 77 Fed. 85, and authorities there cited.

As was said by this court in the case cited, “This doctrine has become familiar learning.” The doctrine as here applied is not at all shaken by the late decisions of the supreme court. On the contrary, in one of those cases that court, speaking by Mr.

Justice Gray, says: “A contract ultra vires being unlawful and void, not because it is in itself immoral, but because tbe corporation, by tbe law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon tbe unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money parted with on the faith of the unlawful contract to be recovered back, or compensation to be made for it.” Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U. S. 24, 60, 11 Sup. Ct. 478, 35 L. Ed. 55.

The judgment of the circuit court is reversed, and the cause remanded, with instructions to grant a new trial.