Schott v. Bank of Elmore Co.

30 N.E.2d 436, 65 Ohio App. 401, 19 Ohio Op. 18, 1939 Ohio App. LEXIS 308

Opinions

Lloyd, J.

This is the second appeal of appellants to this court on questions of law. At the first trial of the action in the Court of Common Pleas a demurrer to the petition, filed by the appellee bank, was sustained on the theory that the petition of the appellants did not state a cause of action, and judgment thereon was entered dismissing the petition. On appeal to this court, that judgment was reversed and the cause remanded to the Court of Common Pleas for further proceedings according- to law. Schott v. Bank of Elmore Co., 62 Ohio App., 67, 22 N. E. (2d), 996.

A retrial was had, resulting again in a judgment for appellee entered on a directed verdict. Prom this judgment the Schotts now appeal to this court. So pinch of the statements and allegations of the petition necessary to state the issues involved are given in the opinion of this court rendered on the first appeal, and no reason appears for further referring to them except to emphasize that the alleged cause of action is based on the factual statements in the petition that the Schotts retained and paid the appellee bank to represent, advise and counsel them in the sale of their farm to a Mr. Damschroder. The entire cause of action is founded on this often-repeated statement.

(Decided November 20, 1939.)

The petition stated a cause of action but the evidence before this court on the instant appeal fails to support it unless it is to be presumed that Carsten, the cashier, by his personal acts, could ipso facto bind the bank in the exercise of an ultra vires act. Neither the bank nor its cashier had any authority to act as an attorney at law for anybody. Furthermore we are unable to find a shred of evidence that the bank as such knew of or had any information as to Carsten’s outside activities or knew that the Schotts were consulting him not only at the bank but at his home, or any evidence that he was authorized by those in control of the business of the bank to so act; and certainly none of these things will be presumed.

With this necessary element of proof missing, to discuss the other alleged errors would be superfluous. As this court views it, the trial court could not do otherwise than direct a verdict, and its judgment is therefore affirmed.

Judgment affirmed.

Carpenter and Overmyer, JJ,, concur.