Fillbach v. First National Bank

Eschweiler, J. It is insisted on this appeal that there is no proper proof that the cashier in making out the writings in question was acting as the agent of the defendant, and specific complaint is made of the admission of plaintiff’s testimony to the effect that the cashier told him at the time the $6 was paid for the services that the money was going to the defendant. It is very doubtful if the admission of such specific item of evidence is properly here for review owing to the lack ,, of proper objection on the trial, but were such statement to be considered as having been erroneously received it could not be considered as prejudicial error in view of the other and properly received evidence as to the facts and circumstances which, standing as they did without contradiction, were ample to support the conclusion that what the cashier did was done as the agent of the bank and not merely as an individual. It is also urged that defendant being a corporation and a national bank, and conveyancing not being shown to be authorized by its charter or within its usual course of business, there can be no corporate liability for the negligence [522] of its cashier, and that as to it the act is ultra vires; the liability that of the individuals alone who were concerned in the transaction. Such doctrine, however, has long ago been denied in this state. John V. Farwell Co. v. Wolf, 96 Wis. 10, 17, 70 N. W. 289, 71 N. W. 109; Hubbard v. Haley, 96 Wis. 578, 588, 71 N. W. 1036; Eastman v. Parkinson, 133 Wis. 375, 381, 113 N. W. 649; Kanneberg v. Evangelical Creed Cong. 146 Wis. 610, 617, 131 N. W. 353. As stated in 5-Fletcher, Corporations, § 3339, “A corporation, though it has no right to engage in an ultra vires business, has the capacity to do so. It may do wrong. If it does so, and thereby injures others, public policy requires that it shall answer in damages; and the doctrine that it is liable in such a case is well supported by authority;” citing, among other cases, Hannon v. Siegel-Cooper Co. 167 N. Y. 244, 60 N. E. 597, where a department store was held liable for the malpractice of those practicing dentistry on their own account but in one of the store’s departments and apparently as a part of its business. See, also, note in L. R. A. 1917A, 749; Baddeps C. Co. v. Burnham-Munger-Root D. G. Co. 228 Fed. 470, 473. The verdict of the jury and determination by the court have ample support in the facts and in law. By the ''Court. — Judgment affirméd.