McLaren v. First National Bank of Milwaukee

Cassoday, J. The Grant Carriage Company was a corporation organized under the laws of Wisconsin, having its [262] office in Milwaukee and doing business there up to January 28, 1888, and for a long time prior thereto. During that time the company had kept its accounts with the defendant bank, and it was customary for the defendant to charge up the amount of acceptances made by the company on drafts drawn upon it to its account, where no check was given in payment. E. W. Grant owned one half of the stock of the company, and was a director, president, and general manager of the company, and the only party with whom the bank transacted its business with the company. In fact he was the only officer of the company in Milwaukee; all the others being nonresidents of the state. Grant kept no individual account with the bank. It is conceded that the draft in question was drawn on account of an individual transaction between Grant and Fisk, and did not concern the business of the carriage company. This being so, it is manifest that the carriage company was not bound by the acceptance, in its name, by its president, E. W. Grant, and might have successfully escaped liability, by reason of the facts stated. Still, we apprehend, as E. W. Grant so accepted without authority, he thereby became individually bound b}7 such acceptance. But the carriage company was not sued upon such acceptance, and made no attempt to escape such liability. The acceptance being by its president, — ■ the only officer in control of its business affairs in Wisconsin,' — -was, in effect, a direction to the defendant bank to pay t'.ie draft out of funds in its possession belonging to the carriage companj7. Especially it should have that effect after the draft had thus been paid and charged up to the carriage company, and returned to it as a voucher for such payment, without any objection ever having been made by the carriage company, or any of its officers, or any one, until the demand made by the plaintiff, June 5, 1888. Besides, it does not appear that the defendant bank was aware of the fact that the draft was drawn [263] on account of an individual transaction between Grant and Fisk, otherwise than might be inferred from the draft itself, at the several times of making such payment and charging up the amount of the draft to the carriage company and crediting the same to the Menominee Bank. The mere inference to be drawn by the defendant from the mere fact that E. W. Grant was personally named as drawee therein may have been overcome by such direction, by the president and sole manager of the carriage company to the defendant, to pay the draft out of moneys in its hands belonging to the carriage company. The facts stated suggest two questions for consideration: First. Might the carriage company have recovered from the defendant the amount of its funds so used in payment of the draft? The corporators of the carriage company had intrusted E. W. Grant with the keeping and care of the entire funds and property of the corporation, and had ostensibly clothed him with plenary power in the management of its business and the disposition of its funds. The defendant had no guardianship over E. "W. Grant, nor supervision over the business of the carriage company, nor the care of its funds, except in so far as it was intrusted with the same by Mr. Grant himself or those under his control and management. Such being the relations of E. ~W. Grant to the carriage company, and its money on deposit in the bank having been used in payment of the draft by such direction of himself and such approval by the carriage company, no good reason is perceived why the carriage company should be allowed to recover the amount of such payment from the bank, notwithstanding such direction and approval. As indicated, there is no evidence that the bank knew, much less connived at, the misappropriation. On the contrary, for aught that appears in the record, it might fairly have been inferred from such direction and approval that the draft was on account of the business of the carriage company. If the car [264] riage compare, by such conduct of its president and sole manager, led the bank to believe that the draft was on account of such business, then it certainly would have been estopped from asserting the contrary. Morgan v. Railroad Co. 96 U. S. 716. “ The doctrine of estoppel in pais always presupposes error on one side, and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.” Ibid. Secondly. The next question requiring consideration is whether the plaintiff, as receiver of the carriage company, stands in a more favorable position to recover against the bank than the carriage company itself. The plaintiff, as receiver, brought an action and recovered judgment against Fisk on account of the draft; thereby treating it as the property of the carriage company, and ratifying the transaction so far as he was able. This action was not commenced until more than a year after the appointment of the plaintiff as such receiver, and some fifteen months after such misappropriation. But the more serious difficulty confronting the plaintiff is the fact that it nowhere appears in the record that at the time of such misappropriation, or of such ratification, or of the appointment of such receiver, the carriage company was insolvent or indebted to anyone. The result is that we must regard the plaintiff as standing in the shoes of the carriage company, and as having no more right to recover, as against the bank, than the carriage company would have had. Even had it appeared-in the record that at the time of the appointment of the receiver the carriage company was insolvent, with creditors who became such subsequently to such misappropriation, still it would have been very doubtful about the plaintiff’s right to recover as against the bank. Farwell v. Metcalf, 63 N. H. 276; Haben v. Harshaw, 49 Wis. 379. If the plaintiff should make it appear that he in fact repre [265] sents creditors of the carriage company existing at the time of the misappropriation, then it may be that he can make a case entitling him to recover as such receiver. But as to that we express no opinion. The following cases may have some bearing upon that subject: Viles v. Bangs, 36 Wis. 131; Cotzhausen v. Judd, 43 Wis. 213, 28 Am. Rep. 539; Hurt v. Clarke, 28 Am. Rep. 751; Huiskamp v. Moline Wagon Co. 121 U. S. 310; Schmidlapp v. Currie, 30 Am. Rep. 530, and note. By the Gourt.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.