First National Bank v. Town of New Milford

36 Conn. 93

• Court: Supreme Court of Connecticut
• Decided: August 15, 1869
• Status: Published

Opinion

Butler, J.

The facts in this case are very simple and the law is equally so, and there is no aspect of them under which the defendants can be subjected upon the note.

Conklin was treasurer of the town, and cashier and loan officer of the bank. It is immaterial whether or not he had authority, as treasurer of the town, to draw the note and obtain the loan without the advice and . assent of the selectmen, if the money had been needed by the town. And immaterial whether the evidence offered and objected to was admissible or not. As the point is made however,- we decide that it was admissible.

Whether he had authority to make a loan or not is immaterial because it is found that the town was not in want of the money, that the treasury was supplied, and that he intended the money for his own use, and therefore, that if he intended to pledge the credit of the town, the act was a gross fraud upon the town.

Did he then intend to pledge the credit of the town to the bank? A majority of the court think not. Conklin was "then engaged in an extensive embezzlement of the funds of the bank, and liable to detection by its officers if they examined its accounts. That fact, and the form of the note, and the presumption that he would not unnecessarily commit another offense, and that he would not contemplate going through the unnecessary form of contracting by himself, as treasurer of the town, with himself as financial officer of the bank, under the circumstances in which he was placed, indicate that he drew the note, entered it in the books, and caused it to be filed by the clerk, as a false representation and cover, pre cisely as he made other false representations and false entries, intending to. restore the money and take out the note, and not intending to onerate the town. If that is so, there was no meeting of minds and no purchase of the note or contract of loan which will sustain this action.

Assuming however that there was a contract of loan, it was made by Conklin as agent of the town with Conklin as agent of the bank. If Conklin, as agent of the town, had applied to the directors for a loan, offering the note and telling them that he had drawn it, not for the benefit of the town, but for his own benefit, without consulting the officers of the town, and. when there was a sufficient supply of money in the treasury, it must be conceded that the board would in making the loan have been partieeps criminis in the fraud, and the bank could not recover in this action. We cannot perceive that that case would differ from this. The contract, if aiiy was made, was made by Conklin on behalf of the bank. No other mind but his met the mind of the agent of the town in making the contract. He as agent of the bank had full knowledge therefore of the fraud; and now the bank, if they ratify his contract and confirm his agency, must accept his knowledge and be bound by it, precisely as if the loan had been made and the knowledge had by the board of directors.

We think it very clear, therefore, in whatever aspect the case may be viewed, that the note in question is not a valid note against the town in the hands of the plaintiffs, and judgment must be advis'ed for the defendants.

In this opinipn the other judges concurred.