First Nat. Bank of Wellsburg v. Kimberlands
| Decision Date | 24 April 1880 |
| Citation | 16 W.Va. 555 |
| Parties | THE FIRST NATIONAL BANK OF WELLSBURG v. KIMBERLANDS. |
| Court | West Virginia Supreme Court |
1. If the jury be sworn to try the issue, and several issues have been joined, and the verdict of the jury is responsive to them all, the Appellate Court will disregard such irregularity and will consider all the issues as decided by the verdict.
2. If a plea concludes to the country, as non assumpsit or payment, the plaintiff may without the formal addition of the similiter proceed to trial, as though the issue had been formally joined. But if the plea concludes with a verification, the plaintiff must reply thereto, before the case can be tried by the jury.
3. Accord and satisfaction may be given in evidence under the plea of non assumpsit.
4. The inherent powers of a president of a bank by virtue of his office are very limited, and it is difficult to say what powers he inherently possesses, if any other than the power to take charge of the litigation of the bank by employing counsel and otherwise.
5. A president of a bank may be authorized by its directors to do any act, which they are authorized by their charter to do unless the act to be done can by the charter be done only by the directors themselves.
6. Such authority need not be proven by showing that it was expressly conferred by the board of directors, but may be proven by showing the existence of such facts, as constitute clearly a public holding out that the particular act done or contract entered into was within the scope of his legitimate delegated authority.
7. The inference, that such authority has been impliedly conferred may be legitimately drawn by proving that he was in the habit of doing acts or making contracts of the same general character as the particular act or contracts which he has done or made, and that these acts or contracts, which he was in the habit of doing, though applied to different subjects involved the same general power, except when the acts and contracts, which he was in the habit of doing or making, were so very numerous and so variant in their character as clearly to justify the inference, that he was authorized impliedly to do all acts and make all contracts, which the directors had the power to do or to make, and to confer on the president the right to do or to make.
8. The directors of a bank may ratify any act done or contract made by the president without authority, which they could have authorized him to do or to make.
9. The acceptance of the benefits of a contract made by the president for the bank is an implied ratification of such contract, and if money is received by its cashier for the bank under such contract, even when such receipt was unknown to the directors, it will be a confirmation of the contract unless the money so received is returned, when its receipt becomes known to the directors.
10. An order drawn on a particular fund or debt, and for the whole thereof, though not accepted by the drawer, is a good equitable assignment of the fund or debt, and it will be recognized by a court of law to the extent of permitting the payee of such an order to institute a suit at law in the name of the drawer against the drawee.
11. If such an order is drawn on a particular fund or debt for but a part of such fund or debt, though not accepted, the order will be an equitable assignment of the fund or debt pro tanto, and may be enforced in a court of equity; but a court of law will not recognize such equitable assignment pro tanto by permitting the payer to bring suit at law in the name of the drawer against the drawee.
12. Though such order on its face does not specify clearly what fund or debt it is drawn upon, yet surrounding circumstances and parol evidence may be introduced to show, that it was drawn on a particular fund or debt, and that it was intended to be an assignment of the same.
13. The particular fund or debt, on which such draft is made, must have an actual or a potential existence, or the draft will be inoperative. But to make such draft valid as an equitable assignment, it is only necessary for the particular fund or debt to have a potenital existence.
14. A mere possibility or expectancy can not be assigned either at law or in equity, and therefore, if, when such an order is given, there be neither an actual debt nor any contract engagement or arrangement between the drawer and the drawee out of which a debt could arise, such a draft could not operate as an equitable transfer of any subsequent debt.
15. If the order was given or intended to operate on a fund or debt, which would be due on the completion of a purchase of a foundry property, consisting of real and personal property, and if before the order was given a contract had been made to purchase this foundry property, and to pay for the personalty at a certain fixed price, and to pay for the realty such price as might be agreed between the parties, but the price to be paid for the real property had not, when the order was given, been fixed, yet this order would operate as an equitable transfer pro tanto of the proceeds of the sale of such foundry, including the real estate, as it had, when the order was given, a potential though not an actual existence.
16. Such an order on a particular fund having, when the order is given, a potential existence, if agreed to be received and actually received in satisfaction and discharge of a debt, is a good accord and satisfaction.
17. If such an order was received as collateral security for a debt, it would be the duty of the payee to use reasonable care and diligence to make it available; and if by negligence, wrongful act or omission on his part loss was sustained on this order, such loss should be borne by the payee.
18. The court on motion of the plaintiff ought to refuse to permit any plea to be filed, which on its face is fatally defective on a general demurrer.
19. The plaintiff in such case, to have advantage of an error of the court in permitting such a plea to be filed, need not take a bill of exceptions; it is sufficient that on the record-book it appears that he objected to the filing of the plea; and it will be presumed that his objection was grounded on the insufficiency of the plea in law as a defence, if the record does not disclose some other ground of objection as the one which was relied on.
20. This court will presume that the plaintiff is injured by the court's permitting an improper plea to be filed after objection is made to it, unless it affirmatively appears by the record that no injury could have been sustained by the plaintiff, which can not appear, if the record as presented to the Appellate Court fails to state the evidence or facts on which the verdict of the jury was based, and this court does not see that all the evidence heard by the jury could have been admitted under proper pleas in the case; and even if all such evidence was certified by the court below, and was admissible under other pleas, it might not necessarily follow, that the plaintiff would not be injured by the improper filing of such plea.
21. The court below ought to have rejected the special plea filed in this case, because it was fatally defective on general demurrer. For the plea, see infra page 559.
22. If a case is tried by a jury on issues joined, and a plea of set-off, not in writing, has been entered on the record as filed, in which there does not appear to be any replication, and no bill of particulars was filed with the plea of set-off at any time before the trial, the failure to make up the issue on the plea of set-off would be no ground for setting aside the verdict, as no evidence could have been offered on such plea in the absence of a bill of particulars.
Writ of error and supersedeas to a judgment of the circuit court of the county of Brooke, rendered on the 25th day of September, 1873, in an action at law in said court then pending, in which The First National Bank of Wellsburg was plaintiff, and Campbell Kimberland and Henry Kimberland were defendants, allowed upon the petition of said bank.
Hon. T. Melvin, judge of the first judicial circuit, rendered the judgment complained of.
Green, President, furnishes the following statement of the case:
This is an action of assumpsit instituted in the circuit court of Brooke county by The First National Bank of Wellsburg on two negotiable notes executed by Campbell Kimberland to Henry Kimberland, Sr., each for one thousand dollars payable four months after their respective dates, and dated, one June 14, 1870, and the other June 21, 1870, both of which were protested, and also for the costs of the protest $1.95 each. The declaration was in the usual form and was demurred to, but the court did not act on the demurrer. At rules the defendant filed pleas of non assumpsit, payment and set-off, but no bill of particulars was filed. No replication was ever filed to any of these pleas, and no issue joined on any of them. In the court the defendants asked leave to file a special plea, to which the plaintiff objected, but the court overruled the objection, and the plea was filed. It is as follows:
" The defendants, for further plea in this behalf, say the plaintiff ought not to have or maintain his said action against them, because they say that heretofore, on the 20th day of August, 1870, after said notes were made, the maker of said notes and said plaintiff had an agreement at the special instance and request of the said plaintiff, whereby said defendant, C. Kimberland, executed and delivered to, and said plaintiff accepted an order on The Wellsburg Manufacturing Company for $5,000.00, out of which said notes in said declaration mentioned were to be paid, which said order was accepted by said Wellsburg Manufacturing...
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