Chapman v. First National Bank
| Decision Date | 02 June 1919 |
| Docket Number | 920 |
| Citation | 26 Wyo. 138,181 P. 360 |
| Parties | CHAPMAN v. FIRST NATIONAL BANK |
| Court | Wyoming Supreme Court |
Rehearing Denied 26 Wyo. 138 at 156.
APPEAL from District Court, Park County; HON.E. C. RAYMOND, Judge.
Action by John W. Chapman, as surviving partner of the co-partnership of Meyer & Chapman, against First National Bank of Cody, et al. From a judgment for plaintiff defendants appeal.
Affirmed.
Collins Campbell & Wood and J. H. Van Horn, for appellants.
Plaintiff and respondent failed to prove that Meyer & Chapman were the owners of the note, which is an essential element of their case. (DeClark v. Bell, 10 Wyo. 1-7, 38 Cyc. 2044.) The note had been endorsed to John W. Chapman. He, Chapman, was the owner of the note within the provisions of the negotiable instrument law. (Sections 3188, 3192, and 3207, Comp. Stats.) The title and ownership was not in Meyer and Chapman at the time of the alleged conversion; defendant's motion for non-suit should have been granted; the most that could be claimed for the endorsement by Chapman was that it passed an equitable title, whereas a legal title was necessary to maintain the action. (Capitol Hill Bank v. National Bank of Rawlins, 160 P. 1171-1180.) There was no evidence that the note was in possession of Meyer & Chapman, when sent to Deegan at Cody. The testimony of Chapman that the note belonged to the co-partnership was incompetent and a mere legal conclusion and a direct violation of the terms of the instrument upon which the action was brought. (Ward v. Shirley, 32 So. 489; Pichler v. Reese (N. Y.), 64 N.E. 441.) It was not shown that Deegan had authority to represent that defendant bank was negotiating a mortgage or to solicit the release of mortgage from Meyer & Chapman. National banks are prohibited by law from making loans on real estate. One dealing with a corporation may rely upon an agent's authority to act upon matters within the apparent scope of his authority only, where the act is within the power of the corporation. It will never be presumed that an agent is authorized to do an illegal act. (Thompson on Corporations, 2nd Ed., Par. 1695 and 1532; Grow v. Cockrill, 63 Ark. 418, 36 L. R. A. 89; State Bank of Moore v. Forsyth, 41 Mont. 249, 108 P. 914; 28 L. R. A. N. S. 501; 31 Cyc. 1567 and 1568; 7 Ruling Case Law, Corporations, Par. 616; 3 Ruling Case Law, Bnks., Par. 71; Fairchild v. Southport (Conn.), 67 A. 471; Grollman v. Ward, 181 Ill.App. 598; 10 Enc. of Evidence; Stover v. Flower (Ia.), 94 N.W. 1100; Strader's Adm. v. Manufacturing Co. (Ky.), 142 S.W. 1073; 31 Cyc. 1640; Condit v. Baldwin, 21 N.Y. 219; 78 Am. Dec. 137; Sturdevant v. Bank (Neb.), 87 N.W. 156 and 95 N.W. 819; North Star Boot & Shoe Co. v. Stebbins (S. D.), 48 N.W. 833; 5 Cyc. 475; Bank v. Armstrong, 152 U.S. 346, 38 Law Ed. 470.) Meyer & Chapman were charged with knowledge that Deegan had no authority to represent defendant bank in soliciting the release of mortgage referred to in his letter. The addition of the title "assistant cashier" to the name of W. J. Deegan had no effect other than to bind Deegan personally. (Metcalf v. Williams, 104 U.S. 93, 26 L.Ed. 665.) If Deegan acted in a representative capacity, it was as the agent of Park Loan & Trust Company. The District Court abused its discretion in denying a motion for a continuance.
W. L. Walls and E. E. Enterline, for plaintiff and respondent.
The ownership of the note is not denied by the answer, which must contain a general or specific denial of each material allegation of the petition controverted by defendant. (Section 4389 Comp. Stats. 1910; Section 4422 Comp Stats. 1910; 31 Cyc. 198.) After denying knowledge, it is superfluous to add a denial of facts. (Flood v. Reynolds, 13 How. Pr. 112.) No assignment of error attacking the sufficiency of the evidence to sustain the judgment is presented and the point is not reviewable. (Capitol Hill Bank v. Bank, 24 Wyo. 423.) Where parties join in an assignment of error in their petition, the judgment will be affirmed even though improperly entered against one. (Greenwalt, et al. v. Imp. Co., 16 Wyo. 226.) There was no evidence of delivery of the note to J. W. Chapman, nor of the endorsement to him by Meyer & Chapman. Evidence on the point was necessary to establish ownership by Chapman individually. Deegan, as assistant cashier, had authority to conduct the transaction for the bank. (3 R. C. L. 444.) A real estate loan made by a national bank can be enforced. (Hanover Bank v. National Bank, 104 F. 421.) Meyer & Chapman were induced to deliver the note and release the mortgage by representations made to them by Deegan, the authorized agent of the First National Bank of Cody, and the bank permitted it to be diverted and therefore became guilty of conversion. Its co-defendant having received the note of a joint tort-feasor and both must respond in damages for the value of the property converted. The motion for continuance was properly denied. That a witness failed to appear is not ground for continuance, since the party desiring his testimony should take his deposition. Especially so when the witness resides out of the State. (Keffer v. State, 12 Wyo. 49, 73 P. 556; Comp. Stats. 1910, 4547.) The judgment should be affirmed.
POTTER, JUSTICE. BEARD, C. J., concurs. BLYDENBURGH, J., being ill, did not participate in the decision.
This action was brought by John W. Chapman as surviving partner of the co-partnership of Meyer & Chapman against the First National Bank of Cody and the Park Loan & Trust Company for the recovery of damages for the alleged conversion of a certain promissory note and a release of a mortgage securing the same. There was a trial to the court without a jury, a general finding for the plaintiff and assessing his damages in the sum of $ 5,080.67, and a judgment in his favor for that amount and costs. The case is here on appeal.
1. As shown by the time of filing the pleadings which appear in the record, the case was at issue on January 16, 1916, and the trial was commenced on May 22, 1917. This was during the May term of the court. On May 21, 1917, the court overruled a motion of the defendants for a continuance to the next term, filed and presented on that day on the ground of the absence of a witness. That ruling is specified as error, and the question is whether the motion was improperly denied upon the showing made as to the diligence used to obtain the evidence. The statute provides that a motion to postpone a trial on account of the absence of evidence can be made only upon affidavit showing the materiality of the evidence and that due diligence has been used to obtain it, and if for an absent witness the probability of procuring his testimony within a reasonable time. (Comp. Stat. 1910, sec. 5139.)
The affidavit in support of the motion states that upon the 12th day of May, 1917, and immediately subsequent to the date when, by agreement of counsel, the cause was set down for trial on May 22, 1917, the affiant, one of defendants' attorneys, had a telephone conversation with W. J. Deegan, who resides at Roundup, Montaa, wherein said Deegan assured affiant that he would go to Cody, where the trial was to occur, not later than Monday morning, May 21, 1917, to testify in behalf of defendants on the trial of the cause on May 22, and that it would be wholly unnecessary to take his deposition, or to resort to any method to compel his attendance for said trial on that day. That said Deegan then also informed affiant that business matters were taking him to Idaho, but that he would return in ample time to be at Cody at the time set. That on the morning of May 20, 1917, affiant received a telegram from said Deegan, sent from Roundup and dated May 19, 1917, reading as follows: That affiant thereupon immediately endeavored to get into telephone communication with said Deegan, to persuade him to keep his promise to be present at the trial at the time set, but failed to reach him by reason of the fact that the telephone line was out of order, and that "although due and proper diligence was used by your deponent to obtain said W. J. Deegan as a witness for the trial, * * * nothing was accomplished by reason of the facts" aforesaid. That affiant believes that if a continuance for the term be granted the testimony of said Deegan can be procured either upon deposition or in person at the next term.
We think that on this question the case is ruled against the appellants by the decision in Keffer v State, 12 Wyo. 49, 73 P. 556. That was a criminal case, and the fact was stated in the opinion that our statute for postponing a trial on account of the absence of evidence applies alike to civil and criminal causes. It was held not to be error to refuse a continuance applied for on the ground of the absence of witnesses residing in another state, where the defendant had relied on their promise to attend, and made no effort to secure their testimony by deposition, nor to secure their attendance by legal process, other than by sending them subpoenas having no extra-territorial effect. It is true that in that case there had been one continuance on the ground that defendant had not had time to prepare for trial, and the second application was presented nearly six months afterwards, and that the record here does not disclose a previous continuance or motion therefor. But in this case a year and several months had...
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