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American National Bank v. Wheelock

45 N.Y. Super. Ct. 205 13 Jones & S. 205 Court N.Y. Super. Ct. Decision date 1879-04-07 English

Contents

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THE AMERICAN NATIONAL BANK OF NEW YORK, Plaintiff and Respondent, v. WILLIAM A. WHEELOCK, Defendant and Appellant.

Headnote

I. Evidence.
1. PRESUMPTION FROM WITNESS’S OWN TESTIMONY THAT FACT IS THE REVERSE OF THAT WHICH HE TESTIFIES IT TO HAVE BEEN, WHEN IT DOES NOT ARISE.
(a) When a plaintiff, to fasten a liability on a defendant by reason of an act done between a persofi acting on behalf of the plaintiff, and the defendant, calls as a witness he who acted on plaintiff’s behalf, who testified that the act done (to wit, the payment of a sum of money) was done under such circumstances as not to fasten a liability on the defendant (to
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wit, as compensation, pursuant to an agreement between plaintiff and defendant, of which the witness had no personal knowledge, for services rendered- by the latter to the former), and who, upon a further examination by plaintiff, in the nature of a cross-examination, allowed on the assumption that he was an adverse witness, gives evidence tending to show that his first statement as to the circumstances under which the act was done was incredible (viz.: an inability to state what the services were for which the payment was made, or to show how and why it was that all the services which the witness had detailed were not fully compensated under an agreement between the parties, without the payment in question), it cannot be inferred, that the transaction must have been of a kind that made the defendant responsible.
1. If the examination, in the nature of a cross-examination, successfully showed the first statement to be incredible, the whole account of the witness must go for nothing, as not shown by a credible witness.
3. ADMISSION OE EVIDENCE PROPER AT THE TIME WHEN GIVEN.
(a) Cause for reversal, when.
1. Where, under one of the aspects of the case as presented by the complaint, evidence -was given (under objection as to its relevancy) as to a transaction between a plaintiff or his agent, and a third person named in the complaint, tending to show a great wrong committed on such third person, with a view of sustaining a charge made in the complaint, of a conspiracy between the defendant and such third person, and no evidence is subsequently given connecting the defendant with such transaction, and the case is submitted to the jury in an aspect to which the evidence so given has no relevancy, and there is conflict of evidence as to those facts which are relevant to the aspects in which the case was put to the jury, the fact that such evidence may have injuriously affected the defendant in its effect on the jury, as tending to excite sympathy for one side and animosity to the defendant, calls for a new trial,
1. A fortiori, when the wrong as to which the evidence iscgiven is of a character entirely different from the conspiracy alleged in the complaint.
S. IMPROPER, EEFEOT OE, WHEN NOT OBVIATED BY CHARGE.
(a) Although the case is put to the jury in an aspect on which
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the evidence has no possible bearing, yet if it is calculated to prejudice the jury against the party as against whom it was received and against whom the jury found, on a conflict of evidence as to the facts which do bear on the case in the aspect in which it was put to the jury, its effect is not obviated by the manner of the submission.
II. Money had and received.
1. AGENT, ACTION LIES AGAINST HIM ALTHOUGH HE HAS PAID OVER TO HIS PRINCIPAL, WHEN.
(a) When an agent of a bank, without authority, either because the authority has not been conferred by the bank as a fact, or because it has no power under its charter to confer such power, pays away its money to an officer and agent of another bank for his bank:, and such officer knows that there is no authority to pay the money and that his bank has no right to take it, he is liable personally for the money, whether or not he is paid it over. This is the general rule.
Query. Whether he would be liable, if the payment was made to satisfy a claim made bona fide, although its character be such that in a case made between the principals it might turn out to be unfounded.
2. Forms op complaint in.
(а) A form in substance like the former common count, alleging money had and received by defendant to and for the use of plaintiff, is sufficient.
1. Insufficiency under the form. A complaint merely alleging that defendant, without any consideration therefor, did obtain the money from plaintiff, is insufficient. It is not equivalent to stating that the money was received for the use of plaintiff.
(a) Effect of previous allegations. When the complaint contains allegations showing the manner in which the money was obtained, the allegation of no consideration must be considered as made in reference thereto, and as being substantially an allegation that by reason of the matters so alleged there was no consideration.
(б) The complaint may set forth the special circumstances which create the liability.
(c) Effect of form of complaint as controlling evidence.
1. Under the first form, any special circumstance which creates the liability may be proved.
2. Under the second form, the plaintiff is confined to proof of the special circumstance alleged.
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Before Sedgwick and Van Vorst, JJ.
Decided April 7, 1879.
m. Evidence.
1. Controlled by form of complaint.
(í$) See money had and received, supra.
Appeal from judgment entered upon the verdict of a jury, and from an .order denying a motion for a new trial.
The complaint alleged the plaintiff, on,. &c.,was, &c., an incorporated national bank, and that the defendant was president of the Central National Bank ; that at the times, &c., an association of banks known as the Clearing-House, existed, for the purpose of facilitating the settlement of exchanges and balances between the members of the association ; that the plaintiff was not a member ; that the Central Bank was ; that it was essential to the credit of the plaintiff that its exchanges and balances should be settled at the Clearing-House.
That this plaintiff, desirous to secure these advantages, prior to the year 1869, entered into an agreement with, the said, the Central National Bank of the city of New York, by which it agreed, for the consideration hereinafter mentioned, to loan its credit and money to this plaintiff, sufficient to enable it from time to time, through said last-named bank, to effect the settlement of its exchanges with other banks, and its clearances through the medium of said association ; in consideration whereof this plaintiff agreed to keep or deposit with the said last-named bank the sum of $50,000. That said parties acted under said agreement for several years, including the years 1869 and 1870, the said defendant during that time being president as aforesaid. That previous to, and during said last-named years, the said plaintiff was financially embarrassed and in impaired credit, and unable, without great effort
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and sacrifice, to maintain itself, and pass the examinations from time to time made by the bank examiners, appointed by the comptroller of the currency of the United States under the laws of Congress. That at the times aforesaid, Charles Callender was such bank examiner, having visitorial power over the banks located in said city under said laws. That the said Charles Callender and the said defendant, prior to July 29, 1869, oppressively and unlawfully conspired together to extort money from this plaintiff, by taking advantage of the embarrassed condition of this plaintiff, and by threats that the said Charles Callender would use his power as such bank examiner to expose said condition of this plaintiff, and subject it to the custody of a receiver, under the laws of Congress in that behalf,-and by threats to withdraw the aforesaid aid of the Central National Bank of the city of New York, whereby this plaintiff would be disenabled, from the settlement of its exchanges and accounts with other banks of said city, in the mode requisite for the maintenance of its credit and business through said Clearing-House ; and thereafter the said defendant, by the means aforesaid, and the use of such threat, and without any consideration therefor, and with intent to extort money from this plaintiff, did, on or about July 29, 1869, obtain from this plaintiff the sum of $5,000 ; and on or about July 6,1870, did, by the same means, obtain the further sum of $500 ; and said sums were, at-the dates aforesaid, under the circumstances aforesaid, paid by this plaintiff to the said defendant, and said defendant has not since repaid the same, or any part thereof.
The answer admitted the relation of the two banks to the Clearing-House; that the plaintiff’s bank was financially embarrassed; denied the allegation as to the fraudulent and oppressive means of obtaining the money, and that the defendant obtained the money, and proceeded:
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“ And for a further answer, this defendant says:
“That the Central National Bank of the city of New York rendered services to the plaintiffs, on various days, between June 1, 1867, and July 29, 1869, which said services were of great value to the plaintiffs, and that, in consideration of such services, and as a compensation therefor, the plaintiffs paid to said Central National Bank, on July 29, 1869, the sum of $5,000.
“ That the plaintiffs paid the same voluntarily, and without demand from the said Central National Bank of the city of New York.
“That the said sum of money is the same sum of money and the same payment, falsely alleged in the complaint to have been made to this defendant on the date aforesaid.
1 ‘ And for a further answer, defendant says:
“ That on July 6, 1870, Joseph Poole was the president of the plaintiffs.
“That said Joseph Poole, on said last mentioned date, paid to the Washington Heights Presbyterian Church, of which church this defendant was the treasurer, the sum of $500, and that said sum of $500 is the same sum of money and the same payment falsely alleged by the plaintiffs in their complaint to have been made to this defendant on the date aforesaid.”
The facts, that refer to the exceptions passed upon on the appeal, sufficiently appear in the opinion of the court.
Martin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel, for appellant, urged:
Officers of a corporation are its agents, and the relation between the corporation and its officers is that of principal and agent (Field on Corp. § 184; Angell & A. on Corp. c. 9; Story Agency, §§ 16, 52, 53). The defendant acted as agent of the Central National
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Bank in receiving the $5,000, and as agent of the Washington Heights Presbyterian Church in receiving the $500. The general rule of law is, that if the principal is liable, the agent is not; and if the agent is bound, the principal is not (Field on Corporations, § 211). It is the well-settled law of this State, that a known agent receiving money for his principal, without fraud, duress or. mistake, is not liable to an action on behalf of a third person, who is ultimately entitled to the money, for neglecting to pay the same upon a request, even although he has not paid it to his principal (Calvin v. Holbrook, 2 N. Y. 126 ; Hall v. Lauderdale, 46 N. Y. 70 ). But where money has been paid to an agent, for the use of his principal, under such circumstances that it can be recovered back from the principal, and the agent has paid it over, it is the unquestioned law that he is no longer liable to an action to recover it back by the party making the payment (Mowatt v. McLelan, 1 Wend. 173 ; Duff v. Buchanan, 1 Paige, 453; La Farge v. Kneeland, 7 Cow. 456 ; Costigan v. Newland, 12 Barb. 456 ; Stephens v. Badcock, 3 B. & Ad. 354; Sims v. Brittain, 4 Id. 375; Pinto v. Santos, 5 Taunt. 447; Snowdon v. Davis, 1 Id. 359). And in the execution of a contract, where the purpose to act for a corporation is manifest, and where it does not appear that there is an intention to assume personal responsibility, the corporation, and not the officer, will be bound thereby (Field on Corporations, § 197, and cases there cited; Dillon on Municipal Corporations, § 376; Story on Agency, § 154, p. 212, note; Bank of the Metropolis v. Guttschlick, 14 Pet. 19 ; Denny v. Manhattan Co., 2 Den. 115 ; affirmed, 5 Id. 639).
III. The moneys were paid for a good and valuable consideration.
v IV. If the payment of these moneys be regarded as a gift, they cannot be recovered, upon the principle.
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that in the absence of fraud, executed gifts inter vivos are irrevocable.
A gift, once executed, is irrevocable and binding, as concerns the parties thereto, and the executors, administrators and others who derive title through either, or stand as mere representatives, unless such mental incapacity, fraud, force or other error may be set up on behalf of the donor or donee as will usually invalidate contracts.
Of course, so far as concerns the donor’s creditors and subsequent bona fide purchasers without notice, or in case of a gift of that which one does not own, the transfer cannot operate to the extent of defrauding one whose right is thus paramount to that of the donee, and such persons, under suitable limitations, may impeach the gift accordingly (2 Schouler on Personal Property, 114; Clarke v. Dutcher, 9 Cow. 674 ; Mowatt v. Wright, 1 Wend. 355 ; Supervisors of Onondaga v. Briggs, 2 Den. 26 ; Wyman v. Farnsworth, 3 Barb. 369 ; Mut. Life Ins. Co. v. Wager, 27 Id., 354; Sprague v. Birdsall, 2 Cow. 419 ; New York & Harlem R. R. Co. v. Marsh, 12 N. Y. 308 ).
The fact that in this.case the donor was a corporation, and that its charter did not authorize such a gift, would not vary the principle of law (Angell & Ames on Corporations, note a, p. 243). The question is very fully discussed in Bissell v. Michigan Southern & Northern Indiana R. R. Co., 22 N. Y. 258 . To the same effect, see opinion óf Comstock, Ch. J., in Parish v. Wheeler, 22 N. Y. 494 .
Y. There was manifest error in admitting the testimony of conversations and transactions between Charles Callender and the president of the American National Bank, at which conversations the defendant was not present, and with which transactions he had no connection whatever. Such testimony was calculated to prejudice the minds of the jury. The claim of the
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plaintiffs was that Callender and the defendant had conspired to extort money from the plaintiffs. But anything which transpired between Callender and the president of the plaintiffs, in the absence of the defendant, without his knowledge, is not admissible, upon any principle of law.
In view of the fact that there is not a scintilla of testimony in the case tending to show any conspiracy between Callender and the defendant, of what possible consequence was it, whether there were any transactions, lawful or unlawful, between the president of the plaintiffs and Callender % The object of the plaintiffs’ counsel, evidently, was to create confusion in the minds of the jury, and to induce them to believe that the defendant was in some way mixed up with what took place between Callender and the president of the plaintiffs. The verdict should be set aside upon these exceptions, if for no other reason.
Beach & Brown, attorneys, and Wm. A. Beach, of counsel, for respondent, among other things, urged:
I. Although the complaint alleges that the moneys sought to be recovered were oppressively extorted from the plaintiff by means of a conspiracy between the defendant and the bank examiner Callender, proof of the combination was not essential to a recovery. It is sufficient if it appeared that defendant had obtained the property of plaintiff without consideration and tortiously. This would be so had several been joined in the action as co-conspirators. No confederacy being proved, a recovery could be had against a single defendant, against whom a tort was proven, with damage to plaintiff (Hutchins v. Hutchins, 7 Hill, 104 ; Savarty v. Vanarsdale, 65 Penn. 507 ; Jones v. Baker, 7 Cow. 445 ; Gardiner v. Pollard, 10 Bosw. 674 , 687; Patten v. Gurney, 17 Mass. 182 , 186; Sheehan v. Shanahan, 5 How. Pr. 461 ; Conaughty v. Nichols, 42 N. Y. 83 ;
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Austin v. Rawdon, 44 Id. 63). Besides, the complaint charges that defendant obtained the moneys without consideration, and with' intent to extort, by means of threats to withhold the aid of the Central Bank, in making plaintiff’s exchanges.
II. If, therefore, there was-sufficient in the proof to justify the jury in finding that defendant became wrongfully possessed of the funds of plaintiff, he was liable; especially if it appeared that defendant, for that purpose, used his position as president of the Central Bank to terrify plaintiff with threatened withdrawal of its aid under the contract.
III. It is no answer for defendant, that he received the money as an official, and profited nothing by the extortion. He was the actual recipient. He solicited the smaller sum donated to the church, and knew that plaintiff’s officers had no power thus to appropriate it. If the jury believed Mr. Poole, the benevolence was a pious, fraud to cover usury. In either alternative, defendant was a wrong-doer and liable. So too, as to the $5,000; defendant received it, knowing it was transferred without consideration; in the language of his answer “voluntarily and without demand from the said Central National Bank.” He knew that_the officers of plaintiff, had no right to squander its funds by gratuities of this character. He was a participant in both wrongs, with full knowledge. The jury had the right to say, under the evidence, that he was the efficient actor in committing both. Occupying that position, he could not defend upon the plea that he exacted or received the moneys for others. He was their agent and colleague in the wrongful act. Indeed, he was the power accomplishing the act. The wrong was his, not excused by his folly in sinning fór the good of his bank, or his. church (Pease v. Smith, 61 N. Y. 477 ; White v. Mechanics’ Bank, 4 Daly, 225 ; Guille v. Swan, 19 Johns. 381 ; Bishop v. Ely, 9 Id. 294; Olm
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stead v. Hotaling, 1 Hill, 317 ; Lansing v. Montgomery, 2 Johns. 382 ).
IY. Mr. Poole, the president of plaintiff, was but its agent, and was himself liable for an abuse of trust, in the misappropriation of its funds ; and so with its other officers (Austin v. Daniels, 4 Den. 299 ; Grocers’ Bank v. Clark, 48 Barb. 26 ). Their liability arises out of their wrongful disposition of a trust fund. That is a willful violation of duty, and tortious. Every particeps criminis is likewise liable. Hence the defendant receiving money wrongfully diverted from a trust fund, with full knowledge of the wrong, became a tortfeasor, and, like all such, is responsible jointly and severally (Hill on Trust. 520; 1 Story Eq. § 422; 2 Id. § 1258; see supra, Point III).
Y. The evidence fully justified a finding by the jury, that the moneys sought to be recovered were extorted from plaintiff, through a conspiracy between defendant and Bank Examiner Callender. It is not, however, necessary to discuss that proposition under the charge of the court below. If the points already argued are tenable, the charge was erroneous.
YI. It cannot be said that the declarations and acts of Callender were inadmissible until the conspiracy was shown. Whatever might have been the rule formerly, it was within the discretion, of the trial court to admit them' at any stage of the trial (Place v. Minster, 65 N. Y. 89 ; Bruce v. Kelly, 7 Jones & S. 27 ; Ormsby v. People, 53 Id. 472; Adams v . People, 9 Hun, 89 ). All this class of objections was, however, avoided by the mode in which the case was submitted to the jury. By the charge of the court the issue of conspiracy was withdrawn from the case. If defendant was liable as a wrong-doer without proof of it, all the evidence given in support of it was needless and harmless.
YU. The proposition by the appellant, in his sec
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ond point, that defendant acted as a known officer and agent, in the receipt of the moneys claimed, and cannot, therefore, be held personally responsible, is sound in the abstract, but entirely inapplicable. First.—The doctrine 'only applies to causes of action ex contractu. It has no application to those arising ex delicto. The authorities cited in its support recognize the distinction.' In Frye v. Lockwood ( 4 Cow. 454 ) the distinction is very clearly declared. Hecker v. De Groot ( 15 How. Pr. 314 ) is equally explicit.
VIII. It is respectfully urged that the court below erred in holding, substantially, that an action would not lie against one conspirator for a wrong done by several in pursuance of it (Moon v. Tracy, 7 Wend. 229 ; Forsyth v. Edminston, 11 How. Pr. 408 ). The ruling was harmful only to the plaintiff. It eliminated that right of action from the case, but it left the evidence in support of it pertinent and influential in support of the quo animo imputed to defendant. It was effectual to relieve defendant of his disguise of innocent agency.

The points fully presented in other respects the views of the respective counsel on the questions considered by the court.

The testimony did not tend to show that the defendant was guilty of any of the tortious acts alleged by the complaint. There was no proof of any conspiracy, or threats, or extortion. The case, however, proceeded, down to the charge of the learned court, as if the cause of action on which the plaintiff rested for a recovery was as stated by the complaint, the defendants obtaining the money by the conspiracy, threats, and extortion alleged. In the course of the testimony, it appeared that a former president of the plaintiff had paid to the defendant, who was president of the Central Bank, and for that bank, $5,000. The witnesses had testified that it was

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paid as a compensation to the Central Bank, for the services of the latter in making clearances through the Clearing-House for the plaintiff. The main witness for the plaintiff was its former president. He testified, in answer to questions put by the counsel for the plaintiff, that the money was paid as compensation, under an arrangement made between the banks. He testified, of his own knowledge, to what it was paid for, although he had had no knowledge of the arrangement at the time it was made. The terms on which the Central Bank was to act at the Clearing-House for the plaintiff had been settled by a former president of the bank. Upon its being assumed that the witness was hostile to the plaintiff, there was given the privileges of a cross-examination. The actual examination was of a kind that is used to destroy the credibility of a witness. The witness having testified to a transaction that would not have made the defendant liable as to the $5,000, he saying that it was paid as compensation to the defendant’ s bank, many questions were put to him, tending to show that he could not explain how the money could have been properly paid as compensation. He was pressed to let the jury know what the services were for which compensation was pretended to be made, and to show how and why it was that the services were not compensated fully by the terms of the arrangement, of which the witness had no knowledge, and which terms, it was assumed, were the whole of the understanding or agreement between the banks.

The burden of proof was upon the plaintiff to show, by credible witnesses, that the circumstances under which the $5,000 were paid gave the plaintiff a right of action. The mere payment did not give a right of action to recover it back. If the cross-examination had successfully shown that the plaintiff’s witness could not make his aqcount consistent with an assumed, or even proved, state of facts, the account must go for

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nothing, as not shown by a credible witness. But it would be an injustice to a defendant to support an inference that, because the account given by the plaintiff’s witness was not credible, therefore the transaction must have been of a kind that made the defendant responsible. I do not mean to say that the answers given by the witness were inconsistent, but only to determine the utmost effect of the testimony, after supposing that the cross-examination was successful.

The defendant, as a witness, testified that the money was paid to him for the Central Bank, on account of services rendered to the plaintiff. If his account was true, the plaintiff’s bank was indebted to the Central Bank for services. No witness in the case proved that the arrangement between the banks was of such a nature, that the plaintiff was not indebted for services rendered in acting for plaintiff at the Clearing-House. I repeat, the burden of proof was on the plaintiff to show, at least, that the money was not due. The defendant put in evidence a resolution upon the minutes of the plaintiff’s board of directors, in these words: “On motion, the president was authorized to pay W. A. Wheelock, president, $5,000, on account of loan made to this bank, by the Central National Bank.” The defendant swore that he did not know of the terms of the resolution before he received the $5,000, and this was upon the trial assumed to be true. It» is manifest that if he did not then know of the terms, they did not at all contradict his account of the transaction.

The testimony of the only other witness in the case is not of sufficient importance to the merits of this appeal to be stated, especially as he had no knowledge of the relations of the bank before 1869, and the alleged services were principally before that time.

Before the judge charged the jury there had been no intimation that the plaintiff abandoned any part of his complaint, or meant to claim a recovery upon any

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other ground than of some tort stated in it. He was not bound to make any declaration on that subject, unless required to, in response to some demand of defendants. No such demand was made. But silence, under these circumstances, leaves his claim as he had made it in the complaint, and had used it for the admission of evidence.

The judge charged “that it was not necessary, therefore, that the plaintiff should prove these allegations,” referring to the combination and conspiracy stated in the complaint. “ If it appear upon the complaint that there is enough to show that the defendant has obtained the funds of the plaintiff wrongfully and without consideration, the complaint will be sustained. ’ ’ And ,he further charged, that a party who obtains funds without consideration, with full knowledge of the circumstances under which they have been obtained—knowing where they came from, and that they have been paid over without consideration, becomes liable to answer for those funds, whether he has disposed of them or kept them.” The defendants’ counsel requested the court to charge “ that there is no evidence whatever of any conspiracy, combination or collusion between defendant and any other person, to obtain or extort money from the plaintiff.” To which the court answered: “As to that, I have sufficiently spoken about the question of conspiracy. I cannot charge this request.”

I do not propose to pass upon any exceptions that were made in respect of the matters that have been stated, but have made the statement for the purpose of examining some exceptions that were taken to the admission of testimony.

When the former cashier of the plaintiff was on the stand as plaintiff’s witness, the plaintiff asked this question, “Did you, on January 4, 1870, and on February 1, 1870, deliver to Mr. Callender $3>000 at each

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date ?” The person named was the Callender mentioned in the complaint as bank examiner. The witness answered that he did, upon the direction of the board of directors. A question was then put, “ Show me any direction of the board of directors to pay that sum.” A resolution was shown “ that the bank pay Charles Cal-lender $6,000 for services rendered this bank, outside of his official duties.” To another question, the witness answered, “ the services varied—-borrowing, money for the bank, helping it through its troubles, going out of his official duty to keep the bank from going into the hands of a receiver.” Several other questions were put on the same subject, one of them to show that Callender was bank examiner at the time.

In this way, the jury had before it an account of a great wrong on the part of Callender, given as evidence against the defendant, after the defendant had objected that it was not evidence at all against him, and was irrelevant 'to the issue.

It certainly was not evidence. Not a jot of evidence was given to connect the defendant with Callender’s misconduct. As irrelevant testimony, it confused the jury in passing upon a case where great discrimination was called for. Given as evidence against the defendant, it- tended to excite sympathy for one side, and animosity to the defendant. And this was the more likely to hurt the defendant as the complaint charged a conspiracy between the defendant and Callender, to obtain money wrongfully from the bank, although the conspiracy charged was of an entirely different character from the offense of Callender, and from first to last, no testimony tended to show that the defendant had conspired as stated in the complaint. And should the case be taken as one where the defendant had received the money wrongfully, so that he was liable for it, although the .wrong was not the wrong stated in the complaint, the defendant would be grievously injured

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by the recital of such things as evidence against him.

The same injustice was likely to occur as to the $500, although the testimony as to this gives rise to considerations different from those that regard the $5,otib. As to the $500, the judge finally left it to the jury to say whether the testimony given by the defendant on this point, or that of plaintiff’s witness, was true. The former testified that Poole, the former president of plaintiff’s bank, brought the money, and subscribed the amount to the church, as if it were the personal property of Poole himself. Poole testified to what may be here deemed sufficient to show that defendant must have known that it was money belonging to plaintiff’s bank. It was assumed on the trial, at least by the charge that to make the defendant liable for this $500, it was necessary to show that when he received it he knew, or believed that it was the bank’s money. In this conflict the evidence given as to Cal-lender’s misconduct might have turned the scales against the defendant, when the jury was weighing his testimony.

For these reasons I think there should be a new trial, but it is expedient to proceed to some questions based upon the form of the pleadings.

I think it is clear, that in a case where it appears that the agent of a bank, without authority, either because the authority has not been conferred by the bank as a fact, or because the bank has no power under its charter to confer such authority, pays away its money to an officer and agent of another bank for his bank, and such officer knows that there is no authority to pay the money, and that his bank has no right to take it, he is liable personally for the money, whether or not he has paid it over. This is the general rule. The arguments on this appeal did not discuss specifically what were the limitations, or exceptions. It would not,

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therefore, be satisfactory to decide in the present case what degree of knowledge or belief the agent receiving must have on the subject of the unauthorized payment to make him personally liable, or whether he would be liable if the money were paid to satisfy a claim made ~bona fide, although its character is such that in a case made between the principals it might turn out to be unfounded. Such considerations are the more important -in respect of the $5,000. For I take it to be clear that if the defendant knew that without authority $500 of the plaintiff’s bank had been given to him for a charity, he would be liable, even if he had parted with the money. I do not know that the learned counsel for the respondent maintains that there would be personal liability if the defendant did not know that it was the money of plaintiff.

A plaintiff has therefore the right to allege the special circumstances that create the liability, or allege that the defendant had and received money to the use of the plaintiff, and prove it by the special circumstances. If the special circumstances are alleged they must be proved, and no other special circumstances materially different can be proved to sustain the complaint.

In the present case there was an entire failure to prove the special circumstances alleged as conspiracy and threat, and intent to extort. The allegations are, “ the said defendant, by the means aforesaid and the use of such threat, and without consideration therefor, and with intent to extort money from this plaintiff, did on, &c., obtain from this plaintiff the sum of $5,000.” It is claimed that the unproved allegations may be rejected as surplusage, and there is enough left to make an action. Admitting that such rejection is proper, but not deciding that it is, all that would be left is “ that the defendant, without any consideration therefor, did obtain the money from the plaintiff.”

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This states no cause of action. It does not state as a fact that the money was received by the defendant for the use of the plaintiff. It would be proved by showing that the defendant, as a bank officer, took money from the plaintiff to be deposited in the bank. In that case there is no consideration given by the bank or the officer acting for it, in the depositing or obtaining. Whatever may be the implications of law in respect of the facts existing, after the obtaining of a deposit, no consideration is necessarily given by the depositary before and upon the “obtaining.” Certain duties arise, but not such as are based upon the existence of a consideration at the time of parting with the money.

The same propositions apply to the allegations as to the obtaining the $500.

On the other hand, I am of opinion that the phrase “and without any consideration therefor” is not severable from the other allegations of the complaint so as to allow it to stand as a substantive statement of the cause of action intended by the pleader. It is really descriptive of the transaction, more specifically described in the other allegations. The statement is, substantially, there was no consideration from the defendant connected with his threat and conspiracy and extortion. This is no notice that the plaintiff relies upon anything but the obtaining by threat, &c.

If this be the true construction of the complaint, the motion should have been granted to dismiss the complaint on the ground “that the complaint is not made out, and that no case whatever has been made against any one, upon the papers.”

Judgment and order appealed from reversed, with costs to the appellant to abide the event of the action.

Van Vorst, J., concurred.

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