Robertson v. Buffalo Cnty. Nat. Bank

• Decision Date: 17 April 1894
• Citation: 40 Neb. 235,58 N.W. 715
• Parties: ROBERTSON v. BUFFALO COUNTY NAT. BANK.
• Court: Nebraska Supreme Court

40 Neb. 235

58 N.W. 715

ROBERTSON

v.BUFFALO COUNTY NAT. BANK.

Supreme Court of Nebraska.

April 17, 1894.

Syllabus by the Court.

1. A case should be tried in an appellate court on the same issues on which it was tried in the court below, but an objection to the variance in the issues should be made of record in the case, by motion or otherwise, before the commencement of the trial, and, if not so made, such objection will be waived.

2. No agent of a corporation has the implied authority to give away any portion of the corporate property, or to create a gratuitous corporate obligation binding on the corporation. Accordingly, where the president of a national bank signed its name to a subscription paper obligating the bank to donate $200 to certain parties on condition that they would erect a paper mill in the city of K., held, (1) that the making of donations of its funds to aid in the building of a paper mill was no part of the business for which the bank was incorporated; (2) that the act of the president was not within the scope of his authority, and that the bank, in the absence of an authorization or ratification by it of the president's act, was not bound by the agreement made.

Error to district court, Buffalo county; Holcomb, Judge.

Action by Frederick Y. Robertson against the Buffalo County National Bank on a subscription. Judgment was rendered for plaintiff in the justice court, and appealed to the district court, where judgment was directed for the defendant, and plaintiff brings error. Affirmed.Dryden & Main and Calkins & Pratt, for plaintiff in error.

R. A. Moore and Hamer, Sinclair & Brown, for defendant in error.

RAGAN, C.

On the 8th day of January, 1889, the president of the Buffalo County National Bank signed its name to a subscription paper by which the signers of said paper agreed to donate and pay to one Johnson and others the sums of money set opposite the respective names of said signers when said donees should have on the grounds $20,000 worth of paper-mill machinery, for the purpose of erecting in Kearney, Neb., a paper mill. The amount subscribed by the bank was $200. On August 15, 1889, Johnson and the other donees mentioned in said subscription paper brought suit before a justice of the peace against the bank on said subscription, and by the consideration of said justice obtained a judgment. The bank appealed to the district court, where F. Y. Robertson was substituted as plaintiff. At the conclusion of the trial, the jury, in obedience to an instruction of the court, returned a verdict in favor of the bank. Robertson's motion for a new trial was overruled, and he brings the case here for review.

There are two assignments of error argued by Robertson's counsel in their briefs in this court. The first is that the court permitted the bank to file an answer in the district court, setting up the defense of ultra vires for the first time in the history of the case. It appears from the record that the case was tried before the justice of the peace on the bill of particulars of plaintiff, and an answer of the bank, consisting of a general denial. When the case reached the district court, the donees filed their petition against the bank, alleging that it was a banking corporation organized under the act of congress; that it has signed the subscription paper, agreeing to pay the plaintiffs $200 when they should have $20,000 worth of machinery on the grounds ready for the erection of a paper mill; and that the plaintiffs had complied with their part of the contract. The bank answered two defenses: First, a general denial; and, second, that the bank was a national bank, organized for the purpose of lending money and receiving deposits, and that the signing of subscription papers like the one in suit was not a part of the business of the bank, and that the same was never signed or authorized to be signed by the board of directors of said bank, and that it was not liable thereon. The petition of the donees was filed in the district court on the 18th of December, 1889, and nothing further appears to have been done in the case until April 4, 1891, when Robertson, on motion, was substituted as plaintiff in the action, and on the same day leave was given the bank to file an answer instanter. The bank complied with this leave by filing the answer mentioned above on the 26th day of January, 1892, and on the 27th day of January, 1892, Robertson filed a reply, consisting of a general denial. So far as the record shows, the attention of the court was never called to the fact that the bank's answer in the district court set up a different defense from...