Home Sav. Bank v. Gertenbach
| Decision Date | 08 November 1955 |
| Citation | 270 Wis. 386,72 N.W.2d 697 |
| Parties | HOME SAVINGS BANK, a banking corporation, Respondent, v. Kenneth GERTENBACH, Appellant, Julius J. Gates et al., Defendants. |
| Court | Wisconsin Supreme Court |
Ray T. McCann, Milwaukee, for appellant.
Stern & Stern, Milwaukee, for respondent.
Counsel for the defendant Gertenbach in the brief filed in support of the motion for rehearing urged that the provisions of section 221.08(9), Stats., had a material bearing on the issue of ratification by the plaintiff bank's board of directors of the unauthorized release of Gertenbach from the guaranty by Kruyne, president of the bank. We granted a rehearing on the narrow question of the application of such statute.
In the instant case the burden of proof was upon Gertenbach to establish ratification. In our original opinion we in effect held that he had failed to meet such burden because of the absence of any evidence showing knowledge by the bank directors of any facts which would indicate to them that Kruyne's release of Gertenbach was irregular or unauthorized. In the absence of such a showing, unless such lack is supplied as a matter of law by section 221.08(9), Stats., there was no duty on the part of the directors to express any dissent, and no intention to affirm could be inferred from mere silence. On this latter point see Comments a and b, Restatement, 1 Agency, pp. 234, 235, sec. 94.
Section 221.08(9), provides:
(Italics supplied.)
It is urged by counsel for Gertenbach that this statute made it the duty of the directors to interrogate Kruyne, when he made the alleged statement that Gertenbach had been released from the...
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