author: Bailey, J.

text:
    Swen J. Johnson et al. v. Samuel D. Ward, Receiver, etc.
    1. Savings bank—A trustee for depositors.—A savings bank is any institution in the .nature of a bank formed for the purpose of receiving deposits of money for the benefit of the depositors; such deposit and the produce thereof, except so much as shall be required for the necessary expenses attending the management of the bank to be returned to the depositors. A bank of such a character would be a mere trustee for the depositors, and its entire funds, whether made up of the deposits themselves, or of the interest, gains and accumulations thereof, would be trust funds held for the benefit of the depositors. The depositors, in a sense, become members of the corporation and its officers mere trustees for their benefit.
    2. Joint-stock corporation doing a savings bank business—Rot a trustee for depositors.—A joint stock corporation organized for the purpose of doing business on account of and for the profit of its shareholders, and where the gains and profits belong to the shareholders, although receiving savings deposits on which it agrees by contract with the depositor to pay a certain rate per cent, interest, is not a savings bank in the true sense of the term, and does not become a trustee for such depositor.
    3. Rights of stockholders.—A bank organized as a joint stock company could not go into operation until possessed of capital stock as required by its charter, and it must be assumed that all who subscribed for and became owners of its stock, acquired all the rights which the law ordinarily gives to stockholders, and the funds, accumulations, and profits of the corporation were held by it in trust for the stockholders and not for the depositors, in the absence of trusts expressly assumed, or arising from special circumstances.
    4. Relation between a bank and its depositors.—The ordinary relation existing between a bank and its depositors is that of debtor and creditor, and no fiduciary relation as to money deposited arises unless by virtue of some provision in the charter or by-laws of the corporation.
    5. As to the funds in suit.—A by-law providing that “ all savings deposited in this bank * * * * shall be invested in the stocks and obligations of the United States, or the State of Ulinois, etc,” even if viewed in the light of an express contract, merely pledges the corporation to invest the savings deposited in certain specified securities. It entirely fails to declare whether such investments shall be made on account of the depositors, or on account of the corporation itself. Unaided by something aliunde, however, it does not fix the character of the funds deposited as trust funds,'"or create the relation of trustee and cestui que trust.

    6. Savings deposit not a trust fund.—By other provisions in the bylaws of this corporation, a specified rate "of interest was to be paid on savings deposits, and the bank became obligated for its payment, without regard to whether the same was realized from the investment of the money by the bank; the depositor might under certain stated regulations withdraw his deposit, and this right existed without reference to the condition of the investment at the time. Had the securities been lost or destroyed without the fault or negligence of the bank, it would still have been liable to the depositors for the full amount of their deposits, and might have been compelled to pay the same. All these considerations inevitably lead to the conclusion that the true relation between the bank and its savings depositors was that of debtor and creditor.
    7. Evidence as to origin of the fund in suit.—The record in this case fails to disclose any evidence that the money used in the purchase of the securities in suit, actually arose from or was taken out of the savings deposit fund arising from the deposits made by original savings depositors. It also fails to show that any of the persons who were depositors at the time the bank failed, were such at the date of the execution of the deed of trust in question.
    Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Mr. Elliott Anthony, for appellants;
    contending that power to borrow money by a bank, is a necessary and inherent privilege, though not directly empowered so to do by its charter, cited Morse on Banking, 4; Partridge v. Badger, 25 Barb. 146; Beers v. Phœnix Glass Co. 14 Barb. 358; Curtis v. Leavitt, 15 N. Y. 9; Bank of Australasia v. Breillat, 6 Morris P. C. 152.
    Corporations that have the power to borrow money have also the necessary power to give obligations for its re-payment, in any form not expressly prohibited: Curtis v. Leavitt, 15 N. Y. 9; Daniell on negotiable Instruments, 287.
    Corporations haye all the powers of ordinary persons, as respects their contracts, to carry out the-general purposes and objects of their creation, unless restricted by positive statute or by necessary implication: Weckler v. First Nat. Bank, 42 Md. 581; Littlewood v. Davis, 50 Miss. 403; Barry v. Vurchants Ex. Co. 1 Sandf. Ch. 280; City of Galena v. Corwith, 48 Ill. 423; Richmond R. R. Co. v. Richard, 26 Grattan, 83; Brice on Ultra Vires, 121; Curtis v. Leavitt, 15 N. Y. 53.
    An obligation voluntarily entered into for a good consideration, is valid where it does not contravene the policy of the law and is not repugnant to some statute: Wolfe v. McClure, 79 Ill. 564; Pritchett v. The People, 1 Gilm. 525.

      The burden of proof is upon the party seeking to impeach such contract: Brice on Ultra Vires, 41; Bulkly v. Derby Fishing Co. 2 Conn. 252; Allegheny City v. McClukan, 14 Penn. 8.
    In corporate bodies, the powers of the board of directors are original and undelegated: Hoyt v. Thompson, 19 N. Y. 207; Morse on Banking, 15.
    A private corporation, unless expressly prohibited, may execute promissory notes and mortgages, and give security for a debt: Reid v. Bradley, 17 Ill. 321.
    And the corporation and nobody else, is judge of the exigencies. Any known assurance can be given: Daniell on Negotiable Instruments, 288; Ill. Cent. R. R. Co. v. Bloomington, 76 Ill. 447; Ottawa Plank Road Co. v. Murray, 15 Ill. 336, Maher v. City of Chicago, 38 Ill. 266; Racine & Miss. R. R. Co. v. Farmers’ Loan and Trust Co. 49 Ill. 331; Brice on Ultra Vires, 66.
    The bank had the right to make the trust deed in question. Corporations are presumed to contract within their powers, and when a contract is not, on its face, necessarily beyond the scope of the power of the corporation, it will, in the absence of proof to the contrary, be presumed to be valid: Railway Co. v. McCarthy, 96 U. S. 267; Union Water Co. v. Murphy’s Flats Fluming Co. 22 Cal. 620; Morris R. R. Co. v. R. R. Co. 29 N. J. Eq. 452; Whitney Ames Co. v. Barlow, 63 N. Y. 62; San Antonio v. McChoffey, 96 U. S. 315; Hitchcock v. Galveston, 96 U. S. 351; Maher v. Chicago, 38 Ill. 266.
    Where the contract has been in good faith fully performed;; and the corporation has received the benefit, it cannot avail itself of the defense of ultra vires: Ex parte Chippendale D. G. M. & G. 19; Bradley v. Ballard, 55 Ill. 413; West v. Madison Co. Agr’l Board, 82 Ill. 205.
    As to the power of directors to act for the bank: West v. Madison Co. Agr’l Board 82 Ill. 205; Miller v. McManis, 57 Ill. 126; Darst v. Gale, 83 Ill. 136; Chicago Building Soc. v. Crowell, 65 Ill. 453; Aurora Agr’l etc. Soc. v. Paddock, 80 Ill. 263; Bradley v. Ballard, 55 Ill. 413; Badger v. Batavia Co. 70 Ill. 302; Holder v. L. B. & Miss. R’y Co. 71 Ill. 106.

      A-bank may be bound by any undertaking entered into on its behalf, by any of its officers provided they have been thereto duly authorized: Morse on Banking, 11, 105; Angell & Ames on Corporations, 153; 1 Daniell on Negotiable Instruments, 288; 2 Kent Com. 280.
    Where a corporation receives the benefit of money loaned, it cannot avoid payment by denying its authority to contract the loan: Darst v. Gale, 83 Ill. 136; Ottawa Plank Road Co. v. Murray, 15 Ill. 336; Sackett’s Harbor Bank v. Codd, 18 N. Y. 242; Oneida Bank v. Ontaria Bank, 21 N. Y. 490; McCracken v. San Francisco, 16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; Premental v. San Francisco, 21 Cal. 351; Chicago Building Soc. v. Crowell, 65 Ill. 453; Brice on Ultra Vires, 608; Parish v. Wheeler, 22 N. Y. 503; Bissell v. M. S. R. R. Co. 22 Ill. 258; Hazelhorst v. Savannah, R. R. Co. 43 Ga. 54; Bradley v. Ballard, 55 Ill. 413; Miller v. McManis, 57 Ill. 126; DeGraff v. American Linen Thread Co. 21 N. Y. 128; Gas Co. v. San Francisco, 9 Cal. 453; Railroad Co. v. Howard, 7 Wall. 413; Tracy v. Talmage, 14 N. Y. 162; Labriskie v. C. C. & C. R. R. Co. 23 How. 381; Cary v. Cleveland etc. R. R. Co. 29 Barb. 35; McClure v. Manchester R. R. Co. 13 Gray 124; Ill. Cent. R. R. Co. v. Bloomington, 76 Ill. 447.
    Where an act of the directors is in excess of their authority, a shareholder knowing it must dissent within a reasonable time, or his assent will be presumed: Watt’s Appeal, 78 Pa. St. 370; Curtis v. Leavitt, 15 N. Y. 66; Parish v. Wheeler, 22 N. Y. 494; Steam Nav. Co. v. Weed, 17 Barb. 378; Silver Lake Bank v. North, 4 Johns. Ch. 370; Cluster Glass Co. v. Dewey 16 Mass. 94; Tracy v. Talmage, 14 N. Y. 162.
    A party dealing with a corporation has a right to presume that it acts according to its charter: Akin v. Blanchard, 32 Barb. 527; Parish v. Wheeler, 22 N. Y. 494.
    The relation of a depositor to a bank is that of creditor and debtor: Ketchum v. Bank of Commerce, 19 N. Y. 513; Chapman v. White, 2 Seld. 417; Curtis v. Leavitt, 15 N. Y. 52; Morse on Banking, 25; In re Franklin Bank, 1 Paige, 249; Com’l Bank of Albany v. Hughes, 17 Wend. 94; Graves v. Dudley, 20 N. Y. 80; Foley v. Hill, 2 H. L. Cas. 39; Croskill v. Bower, 32 Beav. 86; Carr v. Carr, 1 Minn. 541; Bullard v. Randall, 1 Gray, 605; Downer v. Phœnix Bank, 6 Hill, 297.
    The money deposited becomes the property of the depositary: Morse on Banking, 25; Brahm v. Adkins, 77 Ill. 263; Carroll v. Cone, 40 Barb. 220; Clark v. Titcomb, 42 Barb. 122.
    The bank was not trustee for the depositor; it was a mere bailment: Morse on Banking, 28; Steele Adm’r v. Clark, 77 Ill. 471; Perry on Trusts, 37; Keem v. Collier, 1 Met. 415; In re Franklin Bank, 1 Paige, 249; Story on Bailments, §88; Marine Bank v. Rushmore, 28 Ill. 463; Boyden v. Bank of Cape Fear, 65 N. C. 15; Tinkham v. Heyworth, 31 Ill. 519; Edwards on Bailments, 66; Marine Bank v. Chandler, 27 Ill. 525.
    As to by-laws of a corporation, their functions, and contracts made under them: Field on Corporations, § 307; Flint v. Pierce, 99 Mass. 68; Mellen v. Whipple, 1 Gray, 317; Field v. Crawford, 6 Gray, 116; Dow v. Clark, 7 Gray, 198; Fay v. Noble, 12 Cush. 1; Royal British Bank v. Turquand, 5 E. & B. 248; Hoyt v. Thompson, 19 N. Y. 207; City of Ottawa v. Maxey, 20 Ill. 413; Mec. & F. Bank v. Smith, 19 Johns. 115; Gallalen v. Bradford, 1 Bibb, 209; Morse on Banking, 52.
    As to estoppel of a corporation: Chicago Building Soc. v. Crowell, 65 Ill. 453; Hough v. Cook Co. Land Co. 73 Ill. 23; Bradley v. Ballard, 55 Ill. 413; Wilson Sewing M. Co. v. Boyington, 73 Ill. 534; Aurora, etc. Soc. v. Paddock, 80 Ill. 263; Hoyt v. Thompson, 19 N. Y. 218; Allegheny City v. McClurken, 41 Penn. 89; Maher v. City of Chicago, 38 Ill. 266; Angell & Ames on Corporations, § 256; Supervisors v. Schenck, 5 Wall. 581; Pendleton v. Arry, 13 Wall. 305; State v. Trustees, 8 Ohio St. 403; State v. Van Horne, 7 Ohio St. 331; Barrett v. County Court, 44 Mo. 199; City of Chicago v. Wheeler, 25 Ill. 478; Bank of Middlebury v. Rut. & Wash. R. R. Co. 30 Vt. 159; Bradstreet v. Bank of Royalton, 42 Vt. 128; Brice on Ultra Vires, 453; Despatch Line v. Bellamy Mfg. Co. 12 N. H. 205; Mors v. Averill, 10 N. Y. 453; Olcott v. Tioga R. R. Co. 27 N. Y. 546; Ottawa Plank Road Co. v. Murray, 15 Ill. 336; Bissell v. M. S. R. R. Co. 22 N. Y. 272.
    An unauthorized act may be ratified: Morse on Banking, 80; Hooker v. Eagle Bank, 30 N. Y. 83.

      The receiver stands in place of the corporation: High on Receivers, 200; Curtis v. Leavitt, 15 N. Y. 51; Morse v. Chapman, 24 Ga. 249; Devendorf v. Beardsley, 23 Barb. 656; Hyde v. Lynde, 4 N. Y. 387.
    When securities are pledged to secure a debt, the pledgee acquires a special property in them: White v. Platt, 5 Denio, 269; Casey v. Cavaroc, 96 U. S. 476; Casey v. Schneider, 96 U. S. 496.
    Corporations are liable for the frauds of their agents when committed in the course of their employment: Phil. R. R. Co. v. Quigley, 21 How. 202; Aldrich v. Press Printing Co. 9 Minn. 133.
    The decree is contrary to the decisions of the Supreme Court of this State: Bradley v. Ballard, 55 Ill. 413; Aurora etc. Soc. v. Paddock, 80 Ill. 263; Chicago Building Soc. v. Crowell, 65 Ill. 453; West v. Madison Co. Agr’l Board, 82 Ill. 205; Badger v. Batavia Paper Co. 70 Ill. 302; Darst v. Gale, 83 Ill. 136; Germania Ins. Co. v. Hutchberger, 1 Chicago Law Jour. 63.
    Mr. W. O. Goody, for appellants;
    contending that the bank had power to borrow money in the usual course of business, cited Curtis v. Leavitt, 15 N. Y. 51; Planter’s Bank v. Sharp, 6 How. 323; Brice on Ultra Vires, 122.
    A bank authorized to take. negotiable paper can assign and transfer it: McIntyre v. Preston, 5 Gilm. 38; Planter’s Bank v. Sharp, 6 How. 323.
    The relation between the bank and its depositors was that of debtor and creditor: Bank for Savings v. Collector, 3 Wall. 513; Morse on Banking, 25; Tinkham v. Heyworth, 31 Ill. 519; Marine Bank v. Fulton Bank, 2 Wall. 252; Thompson v. Riggs, 5 Wall. 678; Ketcham v. Bank of Commerce, 18 N. Y. 513; Chapman v. White, 6 N. Y. 412; In re Franklin Bank, 1 Paige, 249.
    The bank having the power to dispose of the notes and mortgages, the persons who took them were not obliged to see how the money was used: Perry on Trusts, §'789.
    Messrs. Hoyne, Hobtou & Hoyne, for appellee;
    insisting that the money used in creating the fund in question, was the money of the depositors, misappropriated by the bank, and was a trust fund that could be followed, cited Penwell v. Defell, 4 DeGex M. G. 388; 1 Story’s Eq. § 121; Sheldon v. Harding, 44 Ill. 68; Whiteside v. Warner, 20 Vt. 425; Moses v. Murgatroyd, 1 Johns. Ch. 119; Bottsford v. Burr, 2 Johns. Ch. 405; Wray v. Steele, 2 Ves. & B. 388.
    Hpon the question of ultra vires: Field on Corporations § 257; 7 Cow. 485; 2 Wend. 452; Parish v. Wheeler, 22 N. Y. 494.
    Courts of equity will restore to the cestuis que trust not only the fund, but all profits acquired by the trustee: Davone v. Fanning, 2 Johns. Ch. 251; Hood v. Warner, 5 Paige Ch. 655; Michmund v. Girod et al. 4 How. 553; Gilman, etc. R. R. Co. v. Kelly et al. 77 Ill. 426; Paley on Agency, 51.
   Bailey, J.

The Merchants’, Farmers’ and Mechanics’ Savings Bank was incorporated as a joint stock banking" corporation, by a special act of the General Assembly, approved and in force February 22nd, 1861. The corporation was required by the act to have a capital stock of fifty thousand dollars, with power to increase the same to any sum not exceeding five hundred thousand dollars; such stock to be divided into shares of fifty dollars each, twenty per cent, thereof to be paid in by the stockholders at the time of subscribing for the same, and the remainder when called for by the corporation. “Power was given to the directors to declare the shares of any stockholder forfeited to the corporation for non-payment of installments thereon; and an individual liability to the depositors and creditors of the bank was imposed upon the stockholders to an amount equal to the amount of stock held by them respectively. The third and fourth sections oí the act of incorporation are as follows:

§ 3. The said corporation shall be authorized to receive money from any person or persons who ¿nay wish to deposit the same. Married women and minois may, in their own names, deposit money with said corporation, and receive certificates of deposit in their own names, and which deposits shall be subject to their order only. All deposits of money shall be used and improved in a manner not inconsistent with the laws of this State, and any rate of interest, not exceeding that allowed by law, shall be paid for such deposits.
“ § 4. The said corporation may accept and execute all such trusts, whether fiduciary or otherwise, as shall or may be committed to it by any person or persons, or by the order of any court or tribunal in the State of Illinois; may make such special regulations in reference to trust funds, deposits or savings as shall best aid the depositors and parties interested, by accumulating and increasing the same, allowing and receiving such rate of interest therefor, not greater than hereinbefore mentioned, as may be agreed upon; may grant and purchase annuities, issue letters of credit and other commercial obligations; provided the same shall not be in the similitude of bank notes or other evidences of debt, designed to circulate as money. The said corporation shall have power to loan money, to receive money on deposit and pay interest therefor, and to loan money, at any rate of interest not exceeding ten per cent, per annum, or to discount in accordance with bank usage; and in the computation of time thirty days shall be a month, and twelve months a year; and take such security as the directors may see proper; may take stock in other corporations; may buy and sell exchange, bills, notes, bonds and other securities, and may have and hold coin and bullion.”

In the year 1862 the corporation was organized, with a capital stock .of fifty thousand dollars, and adopted a code of by-laws. The capital stock seems to have been afterwards increased to one hundred thousand dollars. The by-laws provided, among other things, that the accounts of savings deposits should be kept upon the same system generally used by the savings banks in the eastern cities, with such improvements as the board of directors might from time to time deem expedient, and that a book or certificate should be given to each depositor of savings, in which each sum deposited should be entered, which book or certificate should be the voucher of the depositor for the amount of his deposit, and should be by him produced upon withdrawing any portion of the deposit, that the same might be entered thereon. Ho such depositor was permitted as a matter of right to withdraw more than ten per cent, of his deposit in any one month without thirty days’ previous notice, or more than twenty per cent, without sixty days’ notice; and a provision was made for declaring and paying interest semi-annually at the rate of six per cent, per annum on all sums of five dollars and upwards, which had been on deposit for the preceding six months, and a ratable proportion on such sums as had been on deposit for the preceding three months. Depositors of savings were required, on making the first deposit, to place their names on a signature book to be kept for that purpose, containing a copy of all by-laws and regulations having reference to savings deposits or depositors, and it was provided that every person signing said book should be deemed to have assented thereto. Among the by-laws relating to savings deposits was the following:

All savings deposited in this bank over and above such sums as maybe expedient to reserve for immediate use, as provided in the charter and these by-laws, shall be invested in the -stocks and obligations of the United States, or the State of Illinois, or in the evidences of the indebtedness of the city of Chicago, or in bonds and mortgages on real estate in the city of Chicago, or upon real estate of double the value of the amount loaned, clear of all incumbrances, or upon such securities as the board of directors may select, in accordance .with the provisions of the charter, or such as are used by the oldest and most reliable savings banks in the United States.”

The, bank after its organization, in 1862, commenced business and continued in operation until September 19th, 1877, when it suspended, and became insolvent. At first it did a general banking business of all kinds, except issuing bills for circulation, as money. At a later period it discontinued most of its business of receiving deposits on which no -interest was paid, and general commercial business, and confined itself mainly, though not exclusively, to a savings business and special trusts. During the entire period of its operations, all moneys received by the bank were mixed, and no separate fund was kept. Moneys received from savings depositors went into the same fund with the previous accumulations of the bank, and with moneys received from oilier depositors, from interest on loans, and from all its other sources of income. From this common fund, money was used for all the purposes of the bank. Taxes, expenses, interest, checks and certificates of depositors were all paid from it, and moneys were drawn from it for investments and loans. '

On the 23d day of December, 1873, the bank established as a part of its business an investment department, for the avowed purpose of furnishing to persons desiring to avail themselves of its benefits, a higher rate of interest than is paid by savings banks upon savings deposits, and, at the same time, furnishing to such persons real estate or other security for the money to be invested by them.” This department was organized in accordance with the following scheme: Promissory notes held by the bank, and which it had previously taken for money loaned by it to the makers thereof, and trust deeds on real estate in Chicago securing the same, to the amount of one hundred thousand dollars, were assigned to, and placed in the hands of George Chandler as trustee, to be held by him in trust as security to those who might invest their money in said department. Provision was made for the transfer to said trustee of further securities whenever the amount of investments should so require. The bank on its part, undertook to receive in said department, all sums of money of one hundred dollars and upwards, delivered to it for investment, and issue therefor to the depositors or investors, investment certificates, bearing interest at the rate of seven and thirty-hundredths per cent, per annum, payable quarterly. By the terms of' these certificates, the holder was given the right at any time to present the same to the trustee in sums of .five hundred dollars or more for exchange or redemption. If he desired to exchange, he could surrender his certificates and receive in lieu thereof, some one or more of the securities held by the trustee as nearly as might be equal, in principal and accrued interest, to the amount of the principal and accrued interest of his certificates, ■ receiving or making payment, as the case might be, of the difference between them. If he desired to have his certificates redeemed in money, he was required to file the same with the trustee, taking his receipt therefor, and the same were payable by the trustee in the order of presentation, out of the funds then in his hands, or which might next come to his hands from the collection of the notes and securities pledged for the redemption of said certificates.

27o certificates were to be issued until countersigned by the trustee, and he was restricted to countersigning an amount equal to the principal of the securities held by him. The trustee was empowered to collect the interest and principal of the securities in his hands as the same should mature, by proceedings in his own name at law or in equity, or to convert the securities and apply the proceeds to the redemption of certificates, or to return and re-transfer the same to the bank upon receiving, in place thereof, other notes and securities of equal value.

The terms of said trust were fully set forth and declared in a deed of trust executed by the bank to Chandler, and acknowledged, and recorded in the office of the recorder of Cook county.

The evidence shows that during the year next following the establishment by the bank of its investment department, about eighty thousand dollars were received by it for investment in this manner, and certificates of investment issued therefor. The entire amount of money received and certificates issued, down to the time the bank failed, was about one hundred and seventy thousand dollars. Of this amount, ninety-three thousand three hundred dollars of certificates were outstanding at the date of the failure, and about one hundred thousand dollars of securities were then remaining in the hands of the trustee. A large portion of. the securities originally assigned to the trustee had been collected, negotiated, or returned, and others substituted therefor, so that when the bank suspended, less than ten thousand dollars of the original securities remained in his hands.

After the failure of the bank, a bill was filed in the Circuit Court of Cook county for the purpose of winding up its affairs, and in that proceeding the appellee was appointed receiver of said corporation. The receiver in taking possession of its effects, got into his hands certain of the mortgages and deeds of trust assigned to Chandler, and other papers belonging to him, as trustee, and afterwards made a written demand on Chandler to surrender to him all notes, deeds of trust, and other securities in his possession, as trustee, claiming to be entitled thereto as such receiver, and claiming the right to collect and distribute the same fro rata among all the creditors of said bank. Chandler thereupon filed a bill against the receiver in his capacity as trustee, joining with him Johnson, one of the appellants, who was a holder of one of said investment certificates, praying that the receiver be enjoined from taking and receiving said securities, and from mingling them with the general assets of the bank, and distributing the proceeds thereof among the general creditors. While this bill was pending, Chandler came into court and resigned his position of trustee, whereupon the receiver was by the court appointed his successor in trust, with directions to keep all the moneys and securities delivered to him by Chandler, separate and distinct from the other moneys and assets in his hands, as receiver, until the final adjudication of the suit; and it was further ordered that the cause proceed against the receiver in the name of Johnson. The receiver thereupon answered the bill and filed a cross-bill, praying the court to direct how the proceeds of the promissory notes and securities claimed to be held in trust should be disposed of. Afterwards, by leave of the court, an amended and supplemental bill was filed on behalf of all the certificate holders, by Johnson and the other appellants, they all being holders of investment certificates, praying that appellee, as successor in trust of Chandler, be required to collect the securities received from Chandler, and apply the same to the payment of said certificates until the same should be paid in full.

Issues were formed upon said original, amended, supplemental and cross-bills, by answers and replications, and the cause being heard on the pleadings and proofs, the court below entered its decree, finding, in substance, that the securities held by Chandler were purchased by funds derived from savings deposits; that under the charter and by-laws of said bank, all the savings deposits made by the several depositors in said "bank were received "by the bank in trust for the depositors; that the transfer of said securities to Chandler was in violation, of said trust; and that as to all of said savings depositors there exists in equity, in their favor, a prior lien, first in point of time as well as in right, to have said securities sold, collected, and paid into the general savings fund, to be equally distributed among the savings depositors of said bank, in proportion to their several amounts, and the holders of said so-called investment certificates.” It was thereupon decreed that the original, amended and supplemental bills be dismissed for want of equity, and that said trust deed to Chandler be set aside, and held to be null and void, as against the savings depositors of said bank, and that the proceeds of the securities thereby assigned to Chandler he distributed among the savings depositors and the holders of the investment certificates as might thereafter be ordered by the court. To reverse this decree the record has been brought to this Court by aptpeal.

Ho question is made in the case as to the power of this bank under its charter to borrow money, and to execute to the lender therefor security in any form not prohibited by law, or to pledge as security for such loans any property of which it had the exclusive ownership both legal and beneficial. Such power is expressly conceded by counsel for appellee. Hor is any question made as to the validity of the trust deed to Chandler apart from the equitable rights claimed by the savings depositors in the securities thereby transferred. The questions presented for our consideration are whether, under the facts disclosed by the-record, the bank held these securities in trust for the savings depositors, and whether such trust, if it existed, precluded the-hank from disposing of or pledging them in the manner-attempted to be done by the deed of trust.

In resolving these questions, it may not be improper to briefly notice the legal relations existing between this bank and its savings depositors. It may be observed that the bank was not a savings bank in the strict sense of that term. It was a joint stock corporation, organized for the purpose of doing business on account of and for the profit- of its shareholders, and consequently its gains and accumulations belonged to them, and not to its depositors. Mr. Grant defines- a savings bank as follows:

A savings bank is defined to be any institution in the nature of a bank formed for the purpose of receiving deposits of money for the benefit of the persons depositing/ to accumulate the produce of so much thereof as shall not be required by the depositors, their executors and administrators, at compound interest, and to return the whole, or any part of such deposit, and the produce thereof \ to the depositors, their executors or administrators, deducting out of such produce so much as shall be required for the necessary expenses attending the management of such institution, but deriving no power whatsoever from any such deposit or the produce thereof ” Grant on Banking, 614.

Manifestly a bank of the character thus described would be •a mere trustee for the depositors, and its entire funds whether made up of the deposits themselves, or of the interest, gains, :and accumulations thereof, would be trust funds held for the benefit of the depositors. The profit to the depositor would be not a rate of interest fixed and determined by contract between "him and the bank, but his distributive share of the whole net ■profits and accumulations of the institution, whatever they might be. The depositors, in a sense, would become members -of the corporation, and the corporation and its officers would "be mere trustees for their benefit.

The bank under consideration, however, as we have seen, was organized and established- upon a wholly different principle. It could not go into operation until possessed of a stock capital of at least fifty thousand dollars. It must then be assumed that all who subscribed for and became the owners of its stock, acquired all the rights which the law ordinarily gives to stockholders in joint stock corporations. The funds, accumulations, and profits of the corporation were held by the corporation in trust for them, and not for the depositors, at least in the absence of trusts expressly assumed, or arising from special circumstances. Especially is this true when the individual liability to the depositors and creditors of the bank imposed by the charter upon the stockholders is considered. It cannot be presumed, that the law intended that the stockholders should pay in their money and incur this heavy liability, merely for the benevolent purpose of enabling depositors to invest their surplus funds, so as to be secure against loss, and to reap at the same time all the profits of such investments.

Such being the character of this banking corporation, we are unable to perceive how, except so far as their standing may have been modified by express provisions of the charter, or of the contract between the parties, the savings depositors did not stand upon precisely the same footing with other depositors not in the savings department. There was nothing in the nature of these deposits distinguishable from those of general depositors. The distinction, wherever one exists, must be derived, not from the nature of the deposit itself, but from the character and objects of the corporation receiving it, or the terms of the contract under which it is received.

The law is well settled that the ordinary relation existing between a bank and its depositor is simply that of debtor and creditor. The original and every subsequent deposit by the customer is, in strict legal sense, a loan by the customer to the bank, and every payment by the bank to, or on account of, the customer is, pro tanto, a re-payment of the loan. Horse on Banking, 25. Honey thus deposited at once becomes the proper money of the bank, which it may deal with and dispose of as it sees fit; and no fiduciary relation of any nature whatsoever arises between the parties.

In the present case, however, the moneys belonging to the savings department of this bank, are sought to be impressed with the character of trust funds, by virtue of the provisions of the charter and by-laws of the corporation. We fail to find anything in the charter from which such a result follows. That, it is time, gives the corporation power to accept and execute trusts, but it nowhere declares that deposits, or any class of deposits, shall be deemed trust funds.

Is such character then given them by the by-laws? In determining this question, all the provisions of the by-laws relating to savings deposits should be considered. It cannot be conceded that, as to these funds, the relation of debtor and creditor, and of trustee and cestui q%t,e trust, existed at .the same time. It must have been one or the other, not both.

It is insisted that the section of the by-laws above quoted at length, conclusively fixes the ■ character of these deposits as trust funds. That section, even if viewed in the light of an express contract, merely pledges the corporation to invest all savings deposited with the bank not needed for immediate use, in certain specified classes of securities. It entirely fails, however, to declare whether such investments shall be made on account of the depositors or on account of the corporation itself. It is susceptible of either construction. It may be regarded, if it should appear aliunde, that the funds are trust funds, as an agreement to invest them for the benefit of the usees. If the contrary appears, then it may be interpreted as a pledge or assurance of the judicious manner in which the bank would invest its own funds so as to be able at all times to pay back to its customers their deposits. After giving this section the full force properly belonging to its entire language, we think the question of the real character of these.savings deposit funds still unanswered.

There are other provisions of the by-laws, however, which we think may contribute to a correct solution. As we have seen, the by-laws stipulated for the payment of interest at fixed periods, to wit, semi-annually, and at a definite and fixed rate, to-wit, six per cent, per annum. If the deposit had been a trust, the usee would have been entitled to his distributive share of the actual profits arising from the investment of the trust funds, and no more. By the agreement, however, the bank undertook to pay a definite rate of interest, whether realized by it or not. Another provision of the by-laws gave the depositors the right, after certain notice, to withdraw their entire deposits. This right existed without reference to the condition of the investment at the time. The fund may have been in the form of mortgages on real estate not yet due; still the bank, notwithstanding, was bound to pay the money. It cannot be doubted that, under these circumstances, the depositor, after giving the required notice, might have proceeded at law and collected his deposit and all interest due, by action of debt, and that he would not have been compelled to resort to a court of equity to reach the deposit fund itself. Had the securities been lost by fii-e, by inevitable accident or theft, without fault or negligence on the part of the bank, it will scarcely be questioned that the bank would still have been liable to the depositors for the full amount of their deposits, and might have been compelled to pay the same if in possession of resources sufficient for that purpose.

These considerations inevitably lead to the conclusion that the true relation between the bank and its savings depositors was that of debtor and creditor, and that the funds arising from the savings deposits were the absolute property of the bank. It follows that the bank had full power to negotiate or pledge any of its securities obtained by loaning said funds, and that the deed of trust to Chandler was valid.

But even were this otherwise, we think the evidence in the record fails to support the decree. The decree finds, as a matter of fact, that the securities transferred to Chandler “ were 'originally purchased by and with substantially the funds supplied by, derived from and actually taken out of the savings deposit fund, arising from the several deposits made by original savings deposit customers of said bank, under its charter and by-laws.”

It should be observed that for a number of years prior to December 23d, 1873, the date of the Chandler trust deed, the bank had been receiving savings deposits, and may so far as appears have then accumulated profits from that business. It is manifest that such profits were in any event the property of, the bank and its stockholders, and not of the then existing savings depositors.

But we fail to find any evidence from which it can be determined with sufficient certainty that the securities transferred to Chandler December 23d, 1873, or those afterwards placed in his hands, were derived from the savings deposit fund. The evidence fails to satisfactorily disclose the amount of resources possessed by the bank December 23d, 1873, or at any subsequent date, up to the time the last of these securities was passed over to Chandler.

Bush W. Chambers, a book-keeper in the bank from January 2d, 1869, to the date of the failure, was the only witness examined on this subject. After stating that during the period of his service the principal business of the bank was receiving savings deposits, loaning money, and collecting interest on its loans, this witness being asked to state the consideration for the notes and securities placed with Chandler, as trustee, answered: There was no distinctive money there. It was all in one fund, no matter from what source. The resources of the bank were savings deposits and their accumulations and interest on loans. The notes and mortgages in Mr. Chandler’s hands were purchased by moneys of the bank, and they came out of the general money, and there was no other means of getting any money. The profits of the bank were from interest on money loans.” This evidence, we think, is far too vague and indeterminate to satisfy us that these securities were the product of the money deposited by those who at the time were savings depositors. So far as appears, the assets of the bank, at that time, may have been largely in excess of the total amount of such deposits. Definite proof on this subject was presumably within the control of the receiver, and should have been produced.

It may further be observed that the evidence wholly fails to show that any of the persons who were savings depositors at the time of the failure of the bank were such at the date of the execution of the deed of trust to Chandler. So far as appears, every dollar owing to savings depositors at, the last named date, may have been paid before the bank failed. As against all depositors of a date subsequent to the Chandler trust deed, the holders of the investment certificates have a lien on the securities held by Chandler, prior in point of time as well as in right. We think, therefore, the evidence fails to make a case upon which the rights of the certificate holders can- be challenged.

In view of the conclusions above announced, the decree must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


source: Caselaw Access Project

license: Public Domain

text:
    City of Chicago v. James R. Crooker.
    1. Cities—Duty to repair sidewalks—Negligence—A question for the jury.—The question of negligence on the part of a city in failing to repair its sidewalks, is for the jury to determine, and the question having been fairly presented to them upon the evidence, their finding should not be disturbed. On an examination of the record in this case the court are of opinion that the verdict is supported by the evidence.
    2. Knowledge of existence of the defect presumed.—The testimony showing that the defect in the sidewalk had existed for a number of months it must be presumed to have been known to the proper officers and employes of the city.
    3. Liability of city.—Although the law requires of the city the exercise of only reasonable care in regard to the safety of its sidewalks, there appears in this case to be a manifest want of even reasonable care, and an injury having resulted therefrom, the city cannot be exempt from liability.
    4. Assessment of damages.—The computation of damages in cases of this character is a matter within the sound discretion of the jury, and courts should not interfere with their finding, unless the amount is so excessive as to give evidence of passion or prejudice on the part of the jury, and even though an appellate court might feel better satisfied with a smaller verdict-,, this would of itself be no ground for a reversal. It appearing from the evidence that the injury in this case was of permanent character, with a consequent loss of business and diminished physical ability to conduct business, a verdict of $4,000 damages is not considered excessive.
    "5. Pleading—Averments in declaration.—Although the declaration does not in terms aver a permanent disability, it does set out by properaverments the nature of the injury received, and under such averment it was competent to show the character and extent of such injury, not only at the time it was received, but also at any subsequent period during its continuance. The averment was sufficiently broad to admit proof of all the consequences necessarily resulting from such injury.
    • Appeal from the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.
    Mr. B. S. Tuthill, for appellant.
    Mr. H. H. Thomas, for appellee;
    upon the question of measure of damages for permanent injury, cited Frink et al. v. Schroyer, 18 Ill. 416; Slater v. Rink, 18 Ill. 527; Ill. Cent. R. R. Co. v. Bonn, 5 Wall. 90; City of Chicago v. Jones, 66 Ill. 349.
   Bailey, J.

Appellant asks for a reversal of the judgment in this case on the grounds, first, that the verdict is against the evidence; and second, that the damages awarded by the jury are excessive.

The suit was brought by appellee against appellant to recover for a personal injury received by appellee, by reason of a defective sidewalk in one of the public streets of the city of Chicago. It appears from the' evidence, that at about nine o’clock in the evening of October 27th, 1875, appellee left the Burdick House, which is situated on the southwest corner of Wabash avenue and Adams street, with a view of taking a street car on Wabash avenue, for Twenty-second street.. As he got to the sidewalk a car was passing, which he hailed. The car passed by, and he started at a rapid walk to overtake it, and in doing so stepped into a hole in the sidewalk and -fell forward, striking his left knee on the curbstone, causing a transverse-fracture of the patella.

It is argued, on behalf of appellant, that the hole in the sidewalk was not a dangerous defect, and that therefore the city was guilty of no negligence in failing to repair it. It would be a sufficient answer to this proposition, that the question of negligence in failing to repair the sidewalk was pre-eminently a question for the jury, and it having been fairly presented to them upon the evidence, their finding should not be disturbed. But after carefully examining the record, we are disposed 'to go further and say that, in our opinion, the finding of the jury is in accordance with the preponderance of the evidence.

It appears that the sidewalk in front of, and immediately south of the Burdick House, on Wabash avenue, was a plank walk, the plank being laid across the walk, and reaching from the Avail of. the buildings to the curbstone. The hole in question Avas situated just south of the south line of the Burdick House. A portion of a plank next to the curbstone, about ten or eleven inches in width, and between three and four feet in length, was broken off, leaving a hole of those dimensions, and about one foot in depth. There is, it is true, some difference in the recollection of the witnesses as to the dimensions of the missing plank, .but they all agree in making it sufficiently large to be capable of causing the injury which appellee has suffered.

The testimony is undisputed that this defect had been in existence for a number of months, and it must therefore be presumed to have been known to the proper officers and employes of the city.

■ It is doubtless true that the law requires of the city the exercise of only reasonable care in regard to the safe condition of its sidewalks, and does not require it to keep them in such condition as to render accidents thereon impossible. We think, however, in this case there was a manifest want of even reasonable care, and injury having resulted therefrom, we know of no rule of law or justice whereby the city can be exempted from liability.

The jury awarded appellee $4,000 damages, and we are called upon to set the judgment aside on the ground that these damages are excessive. In actions of this character the assessment of damages is a matter within the sound discretion of the jury, and courts should not interfere to revise their findings unless they are so clearly and manifestly excessive as to give evidence of passion and prejudice on the part of the jury. Even though an appellate court might feel better satisfied with a smaller verdict, that of itself would not be a sufficient ground for setting it aside.

The evidence shows that the actual expenses incurred by appellee, including his board and loss of salary, during the period of confinement and total disability caused by his injury, amounted to $854. The evidence further shows, beyond contradiction, that appellee has suffered a permanent disability in consequence of his injury. Dr. Hanson testifies: “I have examined the injured knee, and find the patella is united by a ligamentous union, with three-fourths of an inch between the .parts of the fracture. I don’t think it possible for it to be cured, or ever to be in any better shape than it now is. I never knew a case of transverse fracture of the jpatella to be united thoroughly.” Dr. Danforth, appellee’s attendant physician during his illness, testifies: “I have examined plaintiff’s knee lately, and find it in about the ordinary condition; fragments are not united closely; are from one-half to three-fourths of an inch apart, and are united by ligamentous union, which is the common result. It is said that an ossific union is possible, but it is very rare. This isa permanant disability. It is not possible for them to unite closer than is already effected. The effect of the injury will be to discount his ability to get about as actively as he did before. There is greater danger of his falling, and greater danger of fracture occurring again—has to move with-greater care—can’t step up or descend so rapidly and carelessly as before. There is permanent disability or impairment of locomotion. This injury will never be any better. It is at its best now.”

Appellee, both prior to his injury and since, has been employed as a traveling salesman for a Chicago mercantile house. Prior to his injury he was receiving a salary of $1,500 per annum; since the injury, according to his testimony, he has been unable to earn as much as before.

He says: “ In my business it is frequently necessary to get on and off freight trains. Have to use great caution, and frequently miss trains, rather than attempt to get on where I could have got on before the accident. I am not able to earn as much as I did before by $300 a year.”

In view of all the circumstances disclosed by the eviden ce, and especially in view of the permanent disability which appellee has sustained, we are unable to say that the damages awarded are excessive.

The point is made by counsel for appellant, that, under the averments of the declaration, appellee was not entitled to give evidence of, or recover for, a permanent disability. It is true, the declaration does not, in terms, aver that appellee’s injury was permanent. It does however, aver a transverse fracture of th& patella of appellee’s left knee, and under that averment we think it was competent for appellee to prove the character and extent of such injury, not only at the time of its infliction, but also at any subsequent period during its continuance. Such proof related to the very injury itself which is the subject-matter of the litigation, and not to mere consequences, more or less remote, flowing therefrom. Had appellee’s injury consisted of the loss of an arm, it is manifest that no express averment would have been required to let in proof of its permanency. That would have been a necessary implication. Here we think the averment was sufficiently broad to admit proof of the injury itself through its entire history, and also of all consequences necessarily resulting therefrom.

It is a rule of pleading, whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, that then, in order to prevent surprise on the defendant, the plaintiff must state the particular damage he has sustained, or he will not be permitted to give evidence of it. 1 Chitty’s Plead. 396; Olmstead v. Burke, 25 Ill. 86.

This rule, which appellants seek to invoke has, we think, no application to the present case. We perceive no error in the record. The judgment of the court below will therefore be affirmed.

Judgment affirmed.


author: Murphy, P. J.

text:
    Orlando S. Tanner et al. v. David C. Hastings.
    1. Agexcy—Genebal authobity.—Appellee being desirous, by way of protecting his own interest, of procuring the dismissal of certain attachment proceedings, made a proposition for settlement, by which, if accepted, he was to pay $1,000, and authorized Anderson, one of the appellants, if the proposition should be accepted, to pay the $1,000, adding that, “ Whatever arrangement he (Anderson) made, he (appellee) would stand to.” Held, that this constituted Anderson the general agent of appellee in respect to the transaction, and gave him authority to raise the money, by executing a note therefor as agent of appellee.

      2. Appellee liable to accommodation signers oe such note. — The execution of the note being within the scope of the authority given by appellee, he is liable thereon to parties whom his agent procured to sign the note, they having knowledge of the authority given and acting in good faith as accommodation indorsers for appellee, and having been obliged to pay the note at maturity. .
    Appeal from the Circuit Court of Cook county; the Hon. John Gr. Eog-ebs, Judge, presiding.
    Mr. E. E. Allen, for appellants;
    that if a principal permits his agent to advertise his name as agent generally, without noting a limitation .of his authority, and the agent acts outside of his authority, the principal is bound, unless the party had notice of the limitation, cited St. L. & M. Packet Co. v. Parker, 59 Ill. 23.
    Third parties are only required to ascertain the agent’s authority to act in the premises: Mason v. Bauman, 62 Ill. 76.
    As to ratification: Searing v. Butler, 69 Ill. 575; Morris v. Tillson, 81 Ill. 607.
    Messrs. Tuley, Stiles & Lewis, for appellee;
    that it was incumbent upon appellants to ascertain the authority of the agent to act for appellee, and they dealt with him as such agent at their peril, cited Baxter v. Lamont, 60 Ill. 237; Davidson v. Porter, 57 Ill. 300; Peabody v. Hoard, 46 Ill. 242; Smith’s Mercantile Law, 124; Story on Agency, §140; Wharton on Agency, § 459.
   Murphy, P. J.

It appears that in the month of October, 1875, the appellee, being a resident of the State of Iowa, made a trade with one Sidney Frink, of McHenry county, Illinois, by the terms of which trade appellee was to convey to said Frink two hundred acres of land, situated in the State of Iowa, of the agreed value of twenty-five hundred dollars, in consideration of which Frink was to turn out and transfer to appellee1 a certain dairy stock and some farming utensils then in his possession, on the farm occupied by him in McHenry county, of the agreed value of fifteen hundred dollars, and to give his promissory note for one thousand dollars, secured by a mortgage upon said real estate so conveyed to him by the appellee. It appears that after said contract for trade had been executed, and appellee came into possession of the dairy stock and farming utensils, he sold and transfered them to one J. H. Anderson, of the same place, for the sum of thirteen hundred- dollars, taking the note of said J. M. Anderson and his father David Anderson, in payment therefor. It also appears that at this time Frink was in embarrassed and failing circumstances, and that shortly after the transfer of the dairy stock to J. M. Anderson, the creditors of Frink sued out attachments against his property, and levied on- this dairy stock, which Anderson replevied. At this stage of the proceeding appellee again appears upon the field, and for obvious reasons interested himself to effect some disposition of the attachment which had been levied on the dairy stock, the title to which he had guaranteed to J. M. Anderson, and which as vendor he would be compelled to make good if by the attachment- proceedings it should be swept away from his vendee. Whilst it is true that if the same rule of law which would compel appellee to respond to his vendee in case the attachment proceedings should hold the dairy stock, áppellee’s vendor*, Frink, would be liable to appellee in the same event, but Frink being as he was in failing circumstances, being at the time in bankruptcy, or about to file his voluntary petition in bankruptcy, made appellee’s recourse to him in case of the failure of his title of no avail, and pointed to the course adopted as the only safe solution of the problem, which as we have seen, was to so arrange with Frink’s creditors as to have the attachment suit dismissed.

With this object in view, it appears that in December, 1875, appellee called upon Frink to have this attachment suit dismissed, and with a view to enable Frink to do so, offered to take back the Iowa land, return to him, Frink, his note and mortgage for one thousand dollars, and give him one thousand dollars in cash, with which, it was alleged, he could effect a compromise with his creditors, and thus secure a dismissal of the attachment suit, and relieve the dairy stock from further complications. This offer, Frink, at the time, refused to accept. This offer was made in the office of Mr. Ira E. Curtis, at Marengo, 111, in the presence of said Curtis and J. M. Anderson, appellee being at the time on his route East, and being about to go on, on his journey, in the presence and hearing of all these parties, informed Frink and his attorney, Curtis, that at any time thereafter he, Frink, chose to accept that proposition he would authorize J. M. Anderson to take the land for him, and pay him the §1,000, and that if they concluded to accept the offer, “ whatever arrangement he (Anderson) made, he (appellee) would stand to.” These facts, substantially, are established by the concurrent testimony of Curtis, Frink, and J. M. Anderson, and not really denied by the appellee, he disputing the scope and meaning of the words thus imputed to him by the appellants. It appears that after-wards, a short time, and after the appellee had gone East, Frink accepted the offer so made by appellee, and in pur.suance of the understanding had in Curtis-’ office, called upon J. M. Anderson to pay the $1,000, and to deliver up to him tlie note and mortgage for the $1,000 so given on the Iowa land, and to say to whom the 200 acres of Iowa land should be conveyed for the use of the appellee. Anderson requested that the land be conveyed to O. S. Tanner, for the use of the appellee, as appellee was having some trouble with his wife, which made that course desirable; which Frink did, and received from J. M. Anderson his note and mortgage, which had been left with him by the appellee as his agent for such purpose-. It appears that for the purpose of raising the $1,000 in cash for Frink, J. M. Anderson, as the agent of the appellee, called upon the appellants to sign an accommodation note for $1,000, due in one year, for the accommodation oí the appellee, representing to the appellants at the time the object for which the money was being raised, and that he was fully authorized to raise it, and referred them to Curtis and Frink to verify his statement as to his authority from appellee. Having called upon and seen Curtis and Frinls, and learned as they did what the appellee had said and done in the premises, becoming satisfied from all these circumstances that J. M. Anderson had such authority, and that in complying with such request they were conferring a favor on appellee, as an unselfish act of kindness to him, the appellants signed a promissory note, payable to J. M. Anderson, for $1,000, upon which said note the money was raised and used by J. M. Anderson, as the agent of appellee, in securing a dismissal of said attachment suit, which was duly done, and the dairy stock relieved from all embarrassment; which note, at maturity, they were compelled to pay. To recover such money so paid, this suit was brought in the Circuit Court of McHenry county, the venue of which being changed to the Circuit Court of Cook county, where a trial thereof resulted in a verdict and judgment against the appellants, who prayed an appeal to this court, and bring the record here and assign several errors, one of which is that the verdict is contrary to evidence. Another is, that the court admitted improper evidence on the part of the appellee.

It is insisted by the appellee that he never gave J. M. Anderson authority to obtain said note from the appellants. Upon that question the case turned in the court below, and is' really the main question involved in this record. It is urged by the appellee that whatever agency, if any, was created by him in J. M. Anderson, was a special agency, and that under the rules of law, he who deals with a special agent is bound to know for himself that his authority is sufficient to authorize the transaction, and if not, he must be content with the consequences. We recognize the rale of law as correctly assumed by the learned counsel for the appellee, as applied to a special agent. But the question remains to be determined, whether under the facts in this ease, this was a case of special or general agency within the rule above stated. The import of the authority given, as we think, was to make Anderson his general agent within the meaning of the rules. It is claimed by the appellee that he meant by what he said to Anderson—and that such is the fair import and meaning of his words—to simply authorize Anderson to pay the $1,000 himself, but not to raise the money by any other way or means. This construction of the testimony on that point, we think, is sticking in the back. What difference to the appellee can it make whether the appellants or J. M. Anderson shall advance, at his instance and request, $1,000 for his use and benefit? We suppose that in either event the appellee would expect to pay the same; then what substance or merit is there in the claim of appellee that he did authorize Anderson to pay it, which he did, but notwithstanding, he told Frink and Curtis that whatever “ arrangement ” Jo made about it (this whole transaction), he would “ stand to,” he now insists that Anderson was without authority to raise the money as he did. But we think, when viewed in the broader light of the intention of the parties and the object of appellee, it is manifest that he intended to authorize Anderson to arrange the matter ” in such way as to get the attachment suit dismissed and the dairy stock relieved from it, and at the same time relieve himself from his liability to J. M. Anderson, in case it was not dismissed; but the property held thereby. This being the manifest object of the appellee, the inference is irresistible that he meant, and the fair import of the language employed by him to Frink, Curtis and Anderson, is that he authorized Anderson to take charge of the transaction, and do generally and according to his own discretion and judgment, just whatever might be found necessary to raise the $1,000, and thus secure a dismissal of the attachment suit; and that for the purpose of accomplishing this transaction, he was the general agent of the appellee, with authority to bind him generally in the completing of the arrangement as fully and completely as he could bind himself. In confirmation and as decisive of the question, in connection with what we have shown, is the uncontradicted testimony of J. M. Anderson that he saw the appellee the following spring some time, at Marengo, and then and there fully explained and made known to him what he had done in the premises, and how he had transacted the business, to which appellee replied it was all right, and agreed with him to fix the matter with appellants. In the light of these facts and circumstances, we cannot see how it can be doubted that he gave Anderson full authority to do all he assumed to do in the name of appellee. If then, this was a general agency and not a special one, and that as to this transaction, appellee held Anderson out to parties who innocently acted on such holding out as having full authority to close up the transaction with general powers and discretion to complete it, then it follows that it was for that purpose a general agency, which could not be restricted as to the public by any limitation upon that authority, given privately between the principal and agent, in ignorance of which innocent parties act on the apparent authority given by such holding out, as agents by the principal; it was, therefore, error to permit the appellee to make proof of any limitation of such authority made between appellee and Anderson, and of which the appellants were ignorant at the time they signed the accommodation note. It appears that when asked by J. M. Anderson to give said note, the appellants were referred to Curtis and Frink, as knowing the fact of his authority; that before signing the same, they called upon Curtis and Frink to ascertain for themselves that Andera son had such authority. And on being assured -by them of what they had heard, the appellees say they signed the note, and, as we have seen, paid the same, as we think, manifestly for the use, benefit, and accommodation of the appellees; therefore the verdict was against the clear weight or preponderance of the testimony, and should have been the other way; and that a new trial should have been granted; and that it was error to deny the motion for that purpose. For the errors above mentioned, the judgment of the court below is reversed, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Thomas Lyman v. The People ex rel. S. H. McCrea, Collector.
    1. Assessment os entire tract when owned by different persons void.—Where an entire tract of land is assessed as a single tract to one who owns only a portion of it, such assessment is illegal, and the tax based thereon void.
    2. Reason of the rule.—In the absence of a separate assessment, it will be presumed that different tracts are of different values. Neither owner has the means of determining the amount of tax properly chargeable against him, nor can he discharge his own land without paying the tax on the whole tract, or such portion as would fall upon his own parcel, assuming the land in each parcel to be equally valuable, hence the fundamental principle of uniformity in taxation is violated.
    3. Duty of assessor.—It was the duty of the assessor, and he had the power under the statute, to make the assessment in separate parcels, against the different owners, on having actual notice that a portion of the original tract had been conveyed prior to the first day of May; and the fact that the assessment books, as delivered to him by the county clerk, listed the land in one entire tract, will not relieve him from the proper discharge of this duty. What might be his duty in the absence of express notice of the conveyance, is not considered by the court.
    4. Making up lists by county clerk—Lists not binding on assessor.—Although the duty of making up a list of lands subject to taxation, imposed by law upon the county clerk, is highly important, it is merely clerical, designed to aid the assessor in his duties; and the descriptions of land contained in such list are not binding upon the assessor. The duty of making the assessment, ex vi termini,- includes the giving of a correct description of the property assessed.
    5. Owner not bound to go before the Board of Review for correction of the assessment.—The error in the assessment is so far substantial as to render it ipso facto void, and under such circumstances a mere omission of the owner to appear before the Board of Review for the purpose •of having the error corrected, will not give the assessment vitality.
    Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Messrs. Shorey& Shaffner, for plaintiff in error;
    that the ■entire assessment is illegal, cited Barker v. Blake, 36 Me. 433; Blackwell on Tax Titles 146; Hamilton v. City of Fond du Lac, 25 Wis. 490; Cooley on Taxation, 280; State v. Williams, 20 Wis. 240; Jennings v. Collins, 99 Mass. 29; Hanscom v. Hinman, 30 Mich. 420; People v. Hancock et al. 48 Cal. 631; Robey v. Chicago, 48 Ill. 130; Howe v. People, Sup. Ct. Ill. 1878; Prindville v. Campbell, 9 Minn. 22; State ex rel. v. Williston, 20 Wis. 228; Crane v. Janesville, 20 Wis. 305; Shimmin v. Inman, 26 Me. 228; Willis v. Scoville’s Lessee, 9 Ohio, 44.
    Mr. Joseph F. Bonfield and Mr. M. R. M. Wallace, for defendant in error;
    that it was the duty of plaintiff in error to see that his land was properly listed, cited Rev. Stat. Chap. 120, § 66.
    The assessor has no power to list, except in cases omitted by the county clerk: Rev. Stat. Chap. 120, § 77.
    The power to correct and revise lists rests with the county clerk, or county and town board: Rev. Stat. Chap. 120, §§ 95, 86, 97.
    The assessor must value each tract listed, and the word tract has a statutory signification: Rev. Stat. Chap. 120, §76; Spellman v. Curtinius, 12 Ill. 409.
    Plaintiff in error may pay his proportion of the taxes, and herein is his remedy: Rev. Stat. Chap. 120, §162; Lawrence v. Miller, 10 Chicago Legal News, 276.
   Bailey, J.

The record in this case brings before us for review the judgment and order of sale of the County Court of Cook county, against the east half of the northwest quarter of section fourteen, township thirty-eight, range fourteen in said county, for the taxes of 1877 and prior delinquent taxes. This land was formerly owned by one Walter Wright, who died October 25th, 1876, leaving a will whereby said land was devised to Thomas Lyman, the plaintiff in error. By deed dated January 17th, 1877, and recorded March 23d, 1877, Lyman and wife conveyed to Lincoln D. Wright and others, ten acres of said tract, to-wit: the southeast quarter of the northeast quarter of the northwest quarter of said section fourteen.

It seems that the county clerk, in making out for the township assessor the list of lands to be assessed for taxes for the year 1877, listed said land as he had previously done as a single tract and in the name of said Walter Wright. Some time in May, 1877, and after the assessment books had been delivered to the assessor, Lyman wrote a letter to the assessor, informing him of said conveyance to Lincoln D. Wright and others, and asking him to assess the ten acres, and the residue of the original tract, separately. Shortly afterwards Lyman called on the assessor in person and again informed him of said conveyance, at the same time giving him a plat showing the location of the ten acres sold, and requested that his own land he separately assessed. The assessor thereupon suggested that Lyman should get a line from the county clerk directing such separate assessment, which was done. Notwithstanding all this, the assessor neglected to comply with Lyman’s request but assessed and valued both tracts together as a single tract, and so returned the same to the county clerk. On the valuation thus obtained, the taxes of 1877 were extended and levied.

The law seems to be well settled that where an entire tract of land is assessed as a single tract, to one who owns only a portion of it, such assessment is illegal, and the tax based thereon is void. State v. Williston, 20 Wis. 228; Hamilton v. City of Fond du Lac, 25 id. 490; Barker v. Blake, 36 Me. 433; Jennings v. Collins, 99 Mass. 29; People v. Hancock, 48 Cal. 631; Robey v. City of Chicago, 48 Ill. 120.

The reason of this rule is sufficiently obvious. There being ordinarily no uniformity in the values of different tracts of land, it will he presumed in favor of the tax-payer, in the absence of a separate assessment, that different tracts are of different values. Hence where separate parcels of land belonging to different owners are assessed together, as one tract, neither owner has the means of determining the amouut of tax properly chargeable against his property, nor can he discharge his own land from the tax without paying the tax on the whole tract, or such portion of it as would fall upon his own parcel, assuming the land in each parcel to be equally valuable. See Cooley-on Taxation, 280. In this way the owner would presumably be compelled to pay more than his just proportion of the tax, and the fundamental principle of equality and uniformity in the imposition of taxes declared by the Constitution, would be violated.

In the recent case of Howe v. The People (not reported), three parcels of land belonging to different owners were assessed as a single tract, and the Supreme Court, holding the tax based upon such assessment to he void, say: “ The different tracts may he presumed to be of different values. Three separate tracts of land, two of them belonging to others, have been valued and assessed aggregately. What part of the aggregate valuation constitutes the value of appellant’s tract, it is impossible to tell. The value of his tract has not been determined by the assessor, as is required by law. There has -been here a plain non-compliance with a substantial requirement of the statute, the object of which is for the benefit of the tax-payer. A compliance with all such requirements is, upon familiar principles, essential to the validity of the tax.”

It should be observed that in the present ease the evidence shows actual notice to the assessor, while engaged in malting the assessment, of the conveyance of the ten acre tract from Lyman to Lincoln D. Wright and others. He was fully advised of the rights of the parties, and requested to make his assessment accordingly. Under such circumstances it was, beyond doubt, his duty' to make a separate assessment and valuation of the two parcels into which the original tract was subdivided. What might have been his duty in the absence of express notice of the conveyance, is a question which does not arise in this case.

It is, however, insisted on behalf of the defendants in error, that the land in question having been listed as a single tract by the county clerk in the assessment books prepared by him for the use of the assessor, the latter had no power to change such listing, but could only assess and value each tract as the same appeared on the list thus furnished him by the county clerk.

It is true the statute makes it the duty of the county clerk to make up for the several towns or districts in his county, in books to be provided for that purpose, the lists of lands and lots to be assessed for taxes, and to have the same, together with all blanks necessary to he used by the assessor in the assessment of real and personal property, in readiness for delivery to the assessor on or before the first day of May in each year.

These duties, imposed by statute upon the county clerk, although highly important in their character, are, in our view, merely clerical. Their object is to provide-an assessment list in advance, in which shall be set down, so far as practicable, in tabular form, a correct description of the various tracts of land to1 be assessed, with blank columns for valuations, etc. The preparation, of such assessment books is undoubtedly highly essential to the convenient performance by the assessor of the duties incumbent upon him. But we think the assessment list thus prepared by the clerk is at most merely provisional, and the descriptions therein contained are not binding on the assessor in any case where he finds them incomplete or erroneous. The power to correct errors and supply imperfections would seem to be necessarily incidental to the performance by the assessor of his statutory duties. To him, and not to the county clerk, is committed the duty of making the assessment, and such duty, ex vi termini, includes the giving of a correct description of the property assessed.

But were this matter otherwise doubtful, we think it is set at rest by section 77 of the Revenue Law of 1872. (R. S. 1874, p. 870, § 77). It is there provided that “ If the assessor discovers any real property subject to taxation, which has not been returned to him by the clerk, he shall list and assess such property.” This section, we think, by fair intendment applies as well to lands, the description of which is so incomplete and imperfect as to furnish no basis for a valid assessment, as to lands the description of which is altogether omitted. A void description may be regarded as a nullity, and the land thus described as though not described or listed at all.

In the present case, it is true, the entire eighty acre tract was listed and properly described. Bo description, however, was given of either the seventy acre tract, or the ten acre tract. Each of these toots, for purposes of taxation, must be regarded as a unit of property, numerically different from the eighty acres. In this view they were not described at all, and so clearly came within the purview of the section above quoted. We think the assessor was fully authorized, on being notified of a subdivision of the tract, by a conveyance of a part from the owner to a third person, prior to Hay 1st, to list and assess the two parcels thus created separately to their respective owners, and that it was his manifest duty so to do.

It is further insisted, that even admitting the action of the assessor to have been erroneous, the owner should have appeared before the board of review, and that failing to do so, he should be bound by the assessment. Such, we think, is not the rule. The error in the assessment is so far substantial as to render the assessment ipso facto void. Under such circumstances, it is clear that no mere omission on the part of the land owner could have the effect of giving it vitality.

This proposition is, however, we think, conclusively settled against defendants in error by the decision of the Supreme Court in Howe v. The People, above cited. In that ease one of the members of the court dissented from the decision of the majority, and in his dissenting opinion, asserted precisely the principle here sought to be invoked. We must therefore assume that this very proposition was carefully considered by that tribunal and overruled.

The court below rendered judgment, not only for the taxes of 1877, but also for a large amount of taxes of previous years which had been reported as delinquent. These taxes for previous years seem to have been assessed while the entire eighty acre tract was owned by a single proprietor, and we do not understand that their validity is called in question. In consequence, however, of the invalidity of the tax of 1877, the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Pleasants, J.

text:
    The People ex rel. McCrea v. Heirs of John Palmer.
    Special assessment—Erroneous entry of payment—Payment to-officer of the board of commissioners.—The agent of appellees, who was also president of the board of South Park commissioners, received money for the payment of the special assessment against appellee’s land, and told the clerk of the hoard he would pay it on the next day, and thereupon the clerk endorsed “ paid ” against such assessment on the hooks. The money in fact was never paid over by the agent. Held, that the presumption arising from the endorsement of “paid” on the books, was overcome by proof of non-payment; that the agent’s relation to the hoard, as its president, was immaterial, he not being one of the officers empowered by law to collect such assessment and give proper discharge therefor; and no rights of third parties having intervened, the land remains liable for the assessment.

      Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, J udge, presiding.
    Mr. B. S. Thompson, for appellants;
    against the objections of irregularities in the mode of making the assessment, cited Hall v. The People ex rel. 87 Ill. 72; The People v. Sherman, 83 Ill. 165; Chiniquy v. The People, 78 Ill. 570; Karnes v. The People, 73 Ill. 274; Buck v. The People, 78 Ill. 560; C. & N. W. R. R. Co. v. The People, 83 Ill. 467; The People v. Brislin, 80 Ill. 423.
    Mr. J. H. Truman and Mr. C. H. Willett, for appellees;
    cited Rev. Stat. 1874, 910, 913; Brice on Ultra Vires, 592; Bigelow on Estoppel, 480.
   Pleasants, J.

This was an application by the collector to the County Court, at the July term, upon a delinquent list duly verified and filed by him with the county clerk on the 19th day of June, 1878, for judgment against certain lands of the appellees for the second installment of the South Park assessment, due September 1, 1873.

Divers objections were filed on their behalf, but none of them are relied on or urged, except the second, viz: that payment has been made of said assessment.”

In support of this objection, the record shows no more than that William L. Greenleaf, having in his hands as collector for the South Park Commissioners, the warrant for the collection of said installment, wrote thereon the word “ paid ” opposite the description of the land.

But it further shows that on the day before the delinquent list was to be returned, Chauncey T. Bowen, who was then the agent of the appellees and also president of the board of commissioners, told him that he, Bowen, would pay said assessment on the following day by certified check, and thereupon the collector wrote the word as stated; that Bowen did not pay it; that it was never paid; and that afterwards, in the year 1877, because of non-payment the word so written was erased. It was admitted on the argument by counsel for the appellants, that Bowen had received from his principals the amount of the installment.

We find here no room for argument or doubt. The prima facie effect of the word “ paid,” written upon the warrant under the circumstances shown, and whatever presumptions in aid may be supposed to arise from the lapse of time, vanish before the proof that payment was not in fact made. Bowen’s relation to the board, as member or as president, is immaterial, since he was neither the “ corporate authorities ” nor their “ officer duly authorized,” who only were empowered to collect the assessment and give a proper receipt and discharge therefor. B. S. 1877, p. 696, § 3. Throughout this transaction he was simply the agent of the appellees. Belying upon his promise the collector made the memorandum of payment, which was of no higher character than a formal receipt, and was equally subject to explanation and contradiction. It was fully explained and properly erased; and as it does not appear that any rights of others have intervened upon the faith of it, the land remains liable for the amount of the installment and interest, and the appellees must be remitted to their recourse upon their ■ agent.

■ The judgment of the County Court, in sustaining the objection and refusing the application of the relator, was erroneous, and is therefore reversed and the cause remanded.

Beversed and remanded.


text:
    John J. McDermid, et al. v. T. D. Cotton.
    I. Pbincipal and agent—Execution op autuobity.—An agent is bound to pursue the instructions of his principal, and if he deviate therefrom, although with a view to his employer’s interest, he is answerable for any consequent injury. If loss ensue, it is no defense that he intended to benefit his principal, and if he makes a profit thereby he must account to his principal for the whole, notwithstanding he bore the risk of failure.

      2. Principal should disaffirm within a reasonable time.—It is no doubt incumbent upon the principal to disaffirm the unauthorized act of his agent within a reasonable time after notice thereof, but what is a reasonable time is a question of fact to be determined from all the circumstances of the case.
    3. Reasonable time in this case.—In this case, appellants by their telegram of Dec. 6th, led appellee to suppose that their purchase for him had been made according to his instructions, and their letter by mail containing explanations to the contrary did not reach appellee’s residence until Dec. 9th. On Dec. 8th, appellee left home on business and did not return until Dec. 16th, when he first received appellant’s letter of explanation, and at once notified them of his disaffirmance of their acts. Under the circumstances this was done within a reasonable time.

      4. Evidence that purchase was advantageous.—On the trial appellants offered evidence tending to show that the purchase made was just as advantageous to appellee as the one ordered. This evidence was properly excluded. It offered no excuse for a departure from the instructions, that the thing substituted was as valuable as the thing ordered.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Charles H. Wood, for appellants;
    that if the agents acted within the scope of their authority they are not liable for the loss incurred, cited Whitlock v. Hicks, 75 Ill. 460; Hamilton v. Cook County, 4 Scam. 519.
    The plaintiff in law ratified the purchase and is bound by it: Foster v. Rockwell, 104 Mass. 167; Searing v. Butler, 69 Ill. 575; Ward v. Williams, 26 Ill. 447.
    The evidence offered by appellants should have been admitted: Wicker v. Hoppock, 6 Wall. 94; Deere v. Lewis, 51 Ill. 254; Allen v. Suydam, 20 Wend. 321; Sedgwick on Damages, 43.
    A material amendment of a verdict cannot be made by the court without consent of the jurors or of counsel for the defendant: Bodine v. Swisher, 66 Ill. 536; Frazier v. Laughlin, 1 Gilm. 347; Hinckley v. West, 4 Gilm. 136; Paterson v. United States, 2 Wheat. 221.
    Mr. W. T. Burgess, for appellee;
    that' the objection to amendment of the verdict was not assigned in the motion for a new trial, and therefore waived, cited R. R. I. R. R. Co. v. Steele, 69 Ill. 253.

      No exception being taken to the overruling of the motion for a new trial, that motion is not before this court: Miller v. Dobson, 1 Gilm. 572.
   Bailey, J.

This suit was brought by appellee to recover from appellants $425 in money placed in their hands by him, to be used in payment of margins on grain to be bought on speculation by them for him upon the Chicago Board of Trade. Appellee recovered a judgment in the court below for the full amount of said money and costs, whereupon appellants bring the record here, and allege that the court erred: first, in rejecting and receiving testimony; second, in its instructions to the jury; and third, in overruling appellants motion for a new trial.

Appellants, at the time of the transactions in question, were general commission and grain merchants, doing business in Chicago, on the Board of Trade.' Appellee, at the same time, was a resident of the State of Nebraska. Appellee seems to have been acquainted with appellants for a number of years prior to the transactions in question, and to have done business with them by way of consigning to them shipments of grain. On the 80th of October, 1877, appellee being desirous of embarking in a grain speculation through the agency of appellants telegraphed them as follows: “ When I think November or December wheat gets as low as I think it is going, I will order some sold. I will send margin.” On the 16th of November, following, he remitted to appellants $200, at the same time writing them as follows: “ Enclosed find draft for $200. I think I will order some December barley, but to-day it looks to me as though it would go up before long.”

On the 1st day of December, appellee remitted to appellants $225 more, and on the same day telegraphed them from Nebraska: “ When you think December wheat and corn have touched bottom, buy five of each,” meaning five thousand bushels of each. In reply, appellants, on December 3d, wrote appellee acknowledging the receipt of said dispatch, and saying: . “ Experience of long years has shown us that we cannot safely fill such orders. Our customers are too apt to say I bought it on your judgment, when it goes against them, and make this an excuse for not paying losses. Order us and we will fill your orders.” On the same day this letter was written, appellee wrote a letter to appellants, saying: “ I telegraphed you Saturday morning to buy me 5,000 December wheat and corn when you 'thought it had got down as low as you thought it could. Please use your best judgment to my advantage, and much oblige.”

Appellants’ letter of December 3d reached appellee December 5th or 6th, and on December 6th appellee telegraphed appellants: “ Buy me five December barley.” On the same day appellants replied by telegraph: “ Bought five barley sixty-three and a half.” The next day appellants sent to appellee a letter, by mail, in which they wrote: “We neglected to state yesterday that the barley we bought for you was January, and not December. December was, and is, being .freely delivered on this month’s sales, and therefore we thought it better and cheaper to buy you January, which cannot be delivered until-January comes. The market is easy to-day and dull, the interest being centered principally in wheat and corn. Barley is an article that will either make or lose money fast, and needs good'watching. Hoping it will make you some money, we are,” etc.

On the 8 th of December, appellee not having yet received appellants’ letter of December 7th, but supposing from their despatch of December 6th that his order to purchase December barley had been complied with, wrote them as follows: “ I telegraphed you the 6th to buy me 5,000 bushels December barley; received answer had bo’t at 63c. I see it is a little lower yesterday. I have a good deal of faith in December barley. Please watch it close, and if it begins to look too bad let me know.”'

On the same day on which this letter was written, appellee, . without having received appellants’ letter of December 7 th’, left home, and went to a place about forty-five miles from where he lived, and did not return until December 16th or 17th,. Finding, on his return, appellants’ letter of December 7th, and learning therefrom that appellants had bought for Mm January and not December barley, he wrote them December 17th, telling them that it was December barley that he ordered bought, and not January barley, and that he would not have anything to do with it as it was not what he ordered. In reply, appellants wrote him a letter dated December 20th, in which they say:

“Tour letter of the 17 th at hand, and we are surprised at the course you take in regard to the barley. You ordered 5 December barley bought, and we, to serve your interests, and to save you from having to pay for 5,000 cash barley, insurance, and interest, bought 'January instead, which is just as good for you, saved you expense, and is to-day as salable, or more so, than December. Uow that the market has declined a little you plead that you ordered December instead of January, and try to throw the deal on our hands. If yon will show us any good reason why January barley is not as good and better for you than December, we will make the difference good, or we will make it the same to you as December was selling at the time your January was purchased, but you cannot repudiate the purchase altogether, and we are surprised that you should attempt such a thing.”

To this letter no reply was made. The barley purchased was delivered to appellants January 16th, and the price having declined, they were compelled to sell at a loss, which, together with their commissions, amounted to §425, the precise sum placed in their .hands by appellee. The real question presented is whether under the circumstances above detailed appellants or appellee should be compelled to sustain the loss.

It is a plain and unquestionable principle of law that an agent is bound to pursue the orders of his principal and is answerable for any injury consequent on his departing therefrom, however fair may have been his motives for such departure. When his power is limited by instructions he is bound to pursue those instructions and if he deviate therefrom, though with a view to his employer’s interest, he will be liable for the consequences. If loss ensues, it furnishes no defense to Mm that he intended to benefit his principal, and on the other hand, if he thereby obtains an advantage or makes a profit, he will not be allowed to retain it, but must account to his principal for the whole, notwithstanding he bore the risk of failure.

Here, appellants were limited by their instruction received by telegraph from appellee December 6 th, to purchasing barley deliverable to the purchaser in the month of December, and if they acted at all it was their duty to obey that instruction. It left them no discretion. They were not at liberty to substitute something else, although it may in their judgment have been more advantageous to their principal for them to do so. Purchasing barley deliverable to the purchaser in the month of January, was a material departure from their 'instruction, and they had no power to bind their principal thereby.

It is insisted however, by appellants, that by virtue of previous letters from appellee, they had a discretion to act for him according to their own best judgment, notwithstanding the positive order of December 6th. This claim we think cannot be sustained. Appellee’s telegram of December 1st, and also his letter of December 3d, standing by themselves, would undoubtedly have vested such discretion in appellants. Appellants, however, by their letter of December 3d, expressly declined the exercise of any discretion, and called upon appellee for express orders, and in response to that letter appellee gave the order in question. On receiving this order appellant’s discretion was gone. They might perhaps have declined to act at all, if to obey the order would in their judgment have been likely to prove disastrous to their principal, but if they made any purchase for him they were bound to make the precise one ordered.

The point is made by appellants that appellee failed to dis-affirm their act within a reasonable time after the letter notifying him of what they had done had been sent him. It was doubtless incumbent on appellee to disaffirm the unauthorized act of his agents within a reasonable time after being notified thereof, and upon his failure so to do he would be bound thereby-What was a reasonable time for such disaffirmance was a question of fact, to be determined from all the circumstances of the case. The letter notifying appellee that January barley had been bought was written December 7th, and it is to be presumed reached appellee’s place of residence December 9th. On the 8th of December, however, appellee left his home, to be absent for a few days, and returned December 16th or 17th, and then the letter came to his hands and was promptly answered. It is insisted that appellee was in fault in going away from home without leaving behind him some agency for forwarding his correspondence to him in his absence, or at least for having the business with appellants promptly attended to. • "Whatever may be the rule ordinarily, it will be observed that in this case appellants, by their telegram of December 6th, led appellee to suppose that his order had been literally obeyed, and he had a right to rest on that assumption and act accordingly. He was not obliged to anticipate a correction of the telegram, after-wards transmitted to him tardily through the mail. Had appellants forwarded their correction by the same instantaneous method of communication by which their original report of the purchase was sent, the correction would have reached appellee before his departure from home. We are unable to perceive any unreasonable delay on the part of appellee in sending his disaffirmance and repudiation of the purchase.

Complaint is made that the court below excluded evidence offered by appellants tending to show that the purchase made was just as advantageous to appellee as the one ordered. This evidence was clearly inadmissible upon the principles above laid down. It was the duty of appellants to obey appellee’s instruction, and it was no excuse for a departure from the instruction that the thing substituted was as valuable as the thing ordered, or more so. The principal could not be compelled upon such grounds to receive at the hands of his agents an article which he had not authorized them to purchase for him.

We think the instructions given to the jury were entirely in harmony with the law, and subject to no just criticism. We perceive no error in the record, and the judgment is accordingly affirmed.

Judgment affirmed.