Marshall v. Bank of Archie

Ellison, J. This action is to enforce a mechanics7 lien against hotel property in the town of Archie, Missouri. The plaintiff had judgment in the trial court for his account and for the enforcement of his lien. Bi”g?paonweraoí' after hote'f’próp? SSs.mechamcs’ The property belonged to the defendant, the Bank of Archie, and the contract upon which the account and the- lien is founded was for repairs of the hotel made under a contract made by the cashier in the name of the bank. The chief question relates to the authority of the cashier to bind the bank, it being conceded that there was no express authority from the directory for him to make the contracts for the improvements. In the absence of express authority a bank cashier can only act for the bank in the line of the ordinary duties of a cashier. Winsor v. Bank, 18 Mo. App. [95] 665; Bank v. Hughes, 62 Mo. App. 576; Savings Ass’n v. Sailor, 63 Mo. 24. It is evident that the management of hotel property, including the renting and repair of the same is not in the line of the duty of the cashier of a bank. Winsor v. Bank, supra; Savings Bank v. Hughes, supra. But it is equally true that a bank may by a course of conduct with its cashier clothe him with authority he would not have without such conduct. If it for a long time permits its cashier to engage in certain dealings for it which are outside of his duties and beyond his ordinary powers as such officer, it will be bound by his acts notwithstanding it has never given any express authority. Winsor v. Bank, supra. Applying this latter statement of the law to the facts of this case we find enough to justify the trial court in concluding that the cashier had authority to bind the bank. The hotel property had been a security to the bank for indebtedness due the bank and had been bought in by the bank about eighteen months or two years prior to the contract with plaintiff. That the cashier had had the control of the renting and management thereof for the bank since that time. This was evidence tending to show a continued acquiesence by the bank in the authority exercised by the cashier. The bank in all this time of the cashier’s open acts of authority over the property must be presumed to have known it and to have ratified the authority exercised by him. We said in Windsor v. Bank, supra, that a corporation might “by a course of conduct with its officers and the public, give them authority, and confer upon them powers they would not have as such officers, but for the usages of the corporation.” And this is applicable to the ease here. No declarations of law were asked and the case was submitted to the court on the-evidence. We must assume in favor of the judgment that the court found the acts of the cashier had [96] been taken with the knowledge and authority of the bank as indicated herein. MSncesNándsides: pieadingontracl' Under the decision of the supreme court in Henry v. Plitt, 84 Mo. 237, and McDermott v. Claus, 104 Mo. 14 (see also Stone Works v. Brown, 50 Mo. App. 407) in order to secure a lien for fences and sidewalks, the contract therefor must have been let with the contract, as one entire contract, for the improvement on the building. This as we have before stated is the holding of the supreme court. We are of the opinion, that accepting this view of the law it should have been alleged in plaintiff’s petition that the contract for improvement of the hotel building included the building of sidewalks and other improvements on the premises contended for, which were not a portion of the building. It was not so alleged. For the error therefore in allowing a lien for that part of the account entering into such improvements the judgment will be reversed and cause remanded. All concur.