Exchange Bank v. Thrower

45 S.E. 316, 118 Ga. 433, 1903 Ga. LEXIS 580

• Court: Supreme Court of Georgia
• Decided: August 12, 1903
• Status: Published

Opinion

Lamar, J.

Authority to borrow money is among the most dangerous powers which a principal can confer upon an agent. Whoever lends to one claiming the right to make or indorse negotiable paper in the name of another does so in the face of all.the danger signals of business. He.need not lend or discount until assured beyond doubt that the principal has in fact appointed an agent who by the stroke of a pen may wipe out his present fortune and bind his future earnings. The very nature of the act is a warning ; and if the lender parts with his money, he does so at his own peril. If the power was not in fact conferred, he must bear the loss occasioned by his own folly. A power so perilous is not to be implied from acts which in other matters less hazardous might create an agency. It must be conferred in 'express terms, or be necessarily and inevitably inferable from the very nature of the agency actually created. So strict is the rule that it will not be presumed even from an appointment of one as general agent, unless the character of the business or the duties of the agent are ■of such a nature that he was bound to borrow in order to carry out his instructions and the duties of the office. Civil Code, §§ 3004, 3021; Dobbins v. Etowah Mfg. Co., 75 Ga. 238; Mechem on Agency, § 536; Tappan v. Bailey, 4 Met. 536; Jackson Co. v. Com. Nat. Bk. (Ill.), 65 N. E. 136; Doubleday v. Kress, 50 N. Y. 410. While the agent here was given the rather high title of “ cashier,” that of itself did not clothe him with the powers which might have been exercised by an officer bearing that title if employed by a bank. In view of the reluctance with which the law presumes the existence of the power to borrow, this title will be considered to indicate that he was a cash keeper, rather than a cash borrower. Nor will the fact that he was authorized to fill out the blank arid indorse drafts with a rubber stamp reading, “ Pay to the order of the Third National Bank for deposit, James T. Prince, manager, by-cashier,” be treated as authority to indorse in blank. On the contrary, the character of the stamp itself indicated that the principal only authorized a restricted indorsement for the mere purpose of allowing the bank, rather than the agent, to collect. It does not import a general authority to indorse, not does possession of the draft indicate that the agent had the right to discount the draft or collect the proceeds.

The stringent rules of agency are intended to protect a principal against unauthorized acts, but not to shield one who has in fact conferred such authority or ratified his conduct. Here the plaintiff denied that any authority had been given further than that implied in conferring the title “ cashier,” and the right to use the stamp above copied. It denied that Prince had knowledge ó£ the conduct on the part of Brinsfield, or that he in any manner ratified the indorsements- or collections which were shown to have been made by him. The testimony -for the defendant was to the contrary, and was to the effect that the trouble was not so much a want of authority .to indorse, as the improper use Brinsfield made of the money after it-was collected ; that he was a general agent, indorsing drafts, handling the cash, paying out money, occasionally drawing checks, and in full and complete charge of the business during the frequent and necessary absences of the principal; that he had discounted another draft with Thrower some months before, for $394, which was paid without objection; that on these and other like drafts indorsed in the same way, of which Prince denied knowledge, Brinsfield had collected some $8,500, which he had appropriated to his own use; that he originally wrote the indorsements in his own handwriting before-the stamp above referred to was prepared; and that there were other-stamps in tlie office used by him, on which the words “ for deposit” were wanting, apparently contemplating that he had authority to-indorse in blank and to collect. The evidence, while conflicting,, was sufficient to sustain the verdict for the defendant. We have no power to interfere where the judge of the lower court has re-examined the evidence on the motion for a new trial, and, by his refusal to set it aside, -expressed himself as fully satisfied with the verdict..

Judgment affirmed.

By Jme Justices.