Long v. Citizens' Bank

• Decision Date: 01 April 1892
• Citation: 29 P. 878,8 Utah 104
• Parties: MARY A. LONG, APPELLANT, v. CITIZENS' BANK AND OTHERS, RESPONDENTS
• Court: Utah Supreme Court

29 P. 878

8 Utah 104

MARY A. LONG, APPELLANT, v. CITIZENS' BANK AND OTHERS, RESPONDENTS

Supreme Court of Utah

April 1, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

AFFIRMED.

Mr Charles C. Dey and Messrs. Zane and Putnam, for the appellant.

Messrs Evans and Rogers, for the respondents.

BLACKBURN J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

BLACKBURN, J.:

This is a suit brought on a certificate of deposit in the usual form, purporting to be a certificate of deposit of the Citizens' Bank for $ 1,000, payable to Hal W. Watters, signed, "J. P. Barbour, Cashier," dated July 21, 1890. The evidence tends to show that the plaintiff purchased said certificate for value before the same became due, and that she is an innocent holder thereof for value. That a few men, including the defendants Robison and Johnson, early in 1890, agreed to form and carry on a banking business in Ogden, Utah. Some time during the summer they agreed among themselves that they would form a corporation, and do a banking business; that the defendant Robison should be the vice president and general manager; and they talked of J. P. Barbour as cashier, and concluded that, if an arrangement satisfactory could be made with him, he should be cashier, and requested Robison to see him. Robison did see him, and a satisfactory arrangement was made; so that when the bank opened for business August 25, 1890, he was duly installed as cashier. The promoters of the enterprise did not incorporate until the 11th day of August, 1890, and completed its organization on that day, and opened for business on August 25, 1890. Nothing was done excepting procuring supplies, etc., in the way of banking, until August 25, 1890. On August 11, 1890, the officers of the bank were chosen. This certificate was issued at Kansas City, Missouri, July 21, 1890, before the defendant bank was doing business or open for business, and a thousand miles or more away from where it was to do business. The money given for the certificate of deposit, if any, never came into the bank after it commenced business. The court instructed the jury to find for the defendants, and they did. A motion was made for a new trial, which was overruled, and plaintiff appeals both from the judgment and order overruling motion for new trial.

Several errors are assigned for reversal. The most important is the instruction given by the court to the jury to find for the defendants. We think in this the court committed no error. No evidence whatever was given to bind the bank, for it had no existence until some time after the certificate of deposit was issued. It could not be a principal before it existed much less have an agent. It is true that the promoters of the banking enterprise contemplated having Barbour for...