Western Boatmen's Benevolent Ass'n v. Kribben

Wagner, Judge, delivered the opinion of the court. We will not undertake to go into a consideration of the sufficiency of the evidence to support the finding of the referee. The finding of the referee stands as the verdict of a jury, and where there is any evidence to sustain it, we will suppose that the whole evidence was properly weighed and the requisite effect given to it. This appeal is prosecuted by the sureties of Kribben, and it is objected by them that certain admissions made by him were allowed to be given in evidence; but we think the objection is untenable. The referee rejected the testimony in regard to the admissions of Kribben which were made before the execution of the bond, and also those made after the termination of his employment, in reference-to past occurrences. The only statements admitted were such as were made while he was acting in the [42] course of bis oficial relation with reference to the then existing state of affairs. They then become a part of the res gestae, and were clearly admissible. (Blair v. Perpetual Ins. Co., 10 Mo. 559 ; State, to use, etc., v. Atherton, 40 Mo. 209 ; Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29 ; Union Savings Association v. Edwards, 47 Mo. 445.) The point raised, that the damages assessed are in excess of the amount found by the referee’s report, has been obviated by a remittitur filed in this court. I cannot see that the referee erred in holding the appellants responsible for the money loaned by Kribben and not accounted for. It is not shown that he had any authority for appropriating the money in that manner ; and whether the persons to whom he loaned it are solvent or not, is a matter of no consequence. Kribben used the money unauthorizedly, and has failed to account for it, and that must fix the liability of the sureties. It is contended that it was error to charge the sureties for certain gold which was deposited as c.ollateral security on discounted notes, which gold Kribben converted to his own use. The reason assigned for this is that no title could vest in plaintiff to such gold on a contract of loaning notes, as such contract was beyond the power of the plaintiff to enter into. The plaintiff’s charter provides that it shall have power “to acquire and hold estate, real, personal or mixed, and the same to buy, exchange, sell and mortgage, transfer, pledge, or otherwise encumber or alienate, as the board of directors of said association may deem expedient; and said association shall be capable in law of inheriting, receiving, holding, selling or transferring all manner of property, whether by donation, bequest, or in any other form or manner, ,or from any or all persons, body and bodies corporate, in or out of this State; provided, however, the same does not exceed one hundred thousand dollars in value,” etc. The general doctrine undoubtedly is that a corporation can only exercise the powers expressly granted by its charter, or necessary to carry out some express power. And therefore a surety for one as agent of a corporation is limited to such acts as the corporation is authorized to require of its agents. (Blair v. Perpetual Ins. Co., 10 Mo. 559; Nolley v. Callaway County [43] Court, 11 Mo. 447.) But giving these acknowledged principles their fullest scope, still I can see nothing which would prohibit the plaintiff from loaning out its surplus funds. It would certainly not be authorized to do a banking business; but when it had money on hand it might loan it out at lawful interest in furtherance of its benevolent objects. The powers granted are of the most comprehensive character: to buy, exchange, sell, mortgage, transfer, or otherwise use its property; and I have no doubt that within these powers it might legally loan its money. And if it had the right to loan its surplus funds on time, the right to accept security for the loan followed as a necessary incident. The further objection is urged that the bond was given for the performance of the duties of the office of treasurer, while the law designates the officer as “ secretary, who shall act as treasurer and hence the conclusion is attempted to be drawn that the sureties should not be held liable. But there is surely no merit in this position. The sureties agreed to be responsible for Kribben as treasurer. He was treasurer, and while acting as such the defalcation occurred. They are conclusively bound by the recitals and by the pleadings in this case ; and even if we admit that the bond is nothing more, than a common-law instrument, they will not be the least relieved. Upon the whole, we have been unable to find any material error in the record or any substantial merit in the appeal. Judgment affirmed. The other judges concur.