Outagamie County Bank of Appleton v. Tesch

Eschweiler, J. The defendant William C. Tesch could not.be held liable upon the written guaranty itself because, there were no words thereon which bound him personally, the contrary appearing from the nature of the signature, which showed on its face that he purported to act as agent only. He can be held liable, if at all, either on the ground that there was some element of deceit or fraud in that which he did, or on the ground that there was an express or implied warranty on his part that when he assumed to act as agent he had authority so to do. McCurdy v. Rogers, 21 Wis. 197, 202; Oliver v. Morawetz, 97 Wis. 332, 339, 72 N. W. 877; Haupt v. Vint, 68 W. Va. 657, 70 S. E. 702, 34 L. R. A. n. s. 518 and note; People’s Nat. Bank v. Dixwell, 217 Mass. 436, 105 N. E. 435; Williams v. De Soto Oil Co. 213 Fed. 194. The evidence in the record conclusively negatives any element of active fraud or deceit practiced by the defendant towards the plaintiff’s cashier in this transaction. So the judgment cannot be supported upon the theory of any tort having been committed by this defendant. Under the testimony of plaintiff’s cashier the son had transacted no former business with the bank either in connection with the transactions concerning this note and the prior notes or any business for his father. The cashier neither asked nor did the son make any statement from which it might be inferred that he came there with any such [253] authority, and there was therefore no express assumption of such authority. Assuming, as we must, upon the record and under the conflict of. the evidence here on the point, that the son brought the note as well as the interest to the bank at the time in question, although the defendant’s testimony is that the note was already there when he came with the interest, yet the bringing to the bank or having possession of the note carried no implication of authority to make a substantially different contract than that already evidenced by the in-dorsement of the father. From the situation thus presented the cashier had no right to assume that the son had any authority to make another and different contract or to bind his father in some other and different form than that which the father already had done. The acts of plaintiff’s cashier in this case must be considered in connection with the rule as to implied agencies, which in the matter of execution or negotiation of commercial paper is much more limited and more strictly applied than under other circumstances. Pluto P. Co. v. Cuba City State Bank, 153 Wis. 324, 329, 330, 141 N. W. 220; 31 Cyc. 1381; Morris v. Friend, 116 Ark. 424, 173 S. W. 199; Swift & Co. v. Miller, 62 Ind. App. 312, 113 N. E. 447; Merchants’ Nat. Bank. v. Nichols & Shepard Co. 223 Ill. 41, 49, 79 N. E. 38. He was bound to look before he leaped at the conclusion to which he came. It was manifestly to carry out the cashier’s desire, rather than by' any assumption of agency for the father, that the son signed as he did below the guaranty. There was therefore no basis for any substantial or good-faith reliance by the cashier upon the mere acquiescence by the son in the suggestion of the cashier that the obligation of the father should be changed from that which it already was, of in-dorsement, to that of a guarantor, as being an implied representation of authority upon which plaintiff might recover. The situation is manifestly different from that disclosed [254] in the cases relied upon by plaintiff, where the individual sought to be held by his acts or statements gave the other party reason to believe that he had the power or authority which he was assuming to exercise, as in such cases as Roberts v. Goodlad, 167 Wis. 318, 166 N. W. 646; Wis. F. Co. v. Watson, 160 Wis. 638, 152 N. W. 449; Dennison v. Austin, 15 Wis. 334. Under the facts in this case there is not sufficient foundation upon which a judgment against the appellant could properly b'e based, and his motion to dismiss the complaint should therefore have been granted, and the judgment against him must be reversed. By the Court. — Judgment against the appellant, William C. Tesch, is reversed, and the cause remanded with directions to dismiss the complaint as to him.