First National Bank of Fort Scott v. Drake. The trial court found in favor of the plaintiff in the sum of $587.70. Upon what theory this judgment was rendered we cannot tell from an examination of the record. As it appears however from the evidence, that the estate of the bank realized about $500 from the sale of the land in Iowa, obtained under the judgment of foreclosure, we suppose the court thought best, under the circumstances, that the plaintiff should recover back the amount actually realized by the bank, notwithstanding the receiver exceeded his authority in executing the contract. In other words, the court seems to have thought that the estate of the bank ought not to retain the benefits of a contract executed by the receiver in excess of his power. The defendant takes no exception to this judg ment, and under the conclusion reached by us, plaintiff has no reason to complain thereof. The judgment of the District Court must be affirmed. Judgment affirmed. FIRST NATIONAL BANK OF FORT SCOTT V. DRAKE. (35 Kans. 564; 57 Am. Rep. 193.) Directors-how to act. To bind a National bank, the directors must act together as a board; their separate individual assent is ineffectual. THE opinion states the case. below. The defendant had judgment Ware & Ware, for plaintiff in error. A. A. Harris, for defendant in error. JOHNSON, J. This case can be easily disposed of. The only question presented arises upon the refusal of the court to enter judgment in favor of the plaintiff upon the findings of the jury, for the amount of money taken from the bank by the defendant, as First National Bank of Fort Scott v. Drake. interest on demand certificates of deposit that had been issued to himself while he was serving as president and cashier of the bank. The defendant admits that he took the money at the times and in the amounts charged by the plaintiff, and the jury have found that during all the time the defendant was acting as an officer of the bank, there existed a rule or by-law of the bank which prohibited the payment of interest on demand certificates of deposit, and that at no time while the defendant was an officer of the bank did he ever inform the board of directors that he had taken interest on these certificates; and it was also found that the directors did not at any meeting of the board authorize or ratify the action of the defendant in taking interest. The defendant contended and contends that although his act in taking the money was contrary to the by-laws of the bank, yet that there had been a ratification of the unauthorized act by the board of directors which is binding upon the bank. After stating that the directors had never at any meeting of the board ratified the taking of interest by the defendant, the question was asked the jury: "Did the board of directors at any time ratify the taking of the several amounts of interest?" To this question an affirmative answer was given; but in the next finding the jury explained particularly how the supposed ratification had been made, finding that it was "by individual consent of a majority of the board." The last finding, stating particularly what was done, controls and prevails over the former one, stating the general conclusion that there had been a ratification. These findings clearly show that the only sanction which the unauthorized acts of the defendant have received from the plaintiff was given by the individual members of the board acting singly and separately and not as a board. Action thus taken is not binding on the bank, and does not constitute a defense to the plaintiff's claim. The statute declaring the method in which the bank may exercise corporate power provides that the appointment and dismissal of its officers, the enactment of by-laws regulating the manner in which its officers and agents shall conduct its business, and the general supervision and management of its affairs, shall reside in and be exercised by a board of directors. U. S. R. S., § 5136. This statute provides for the election of a president of the board, and otherwise assumes that the directors shall act unitedly as an organ First National Bank of Fort Scott v. Drake. ized body. The election of an individual as a director does not constitute him an agent of the corporation with authority to act separately and independently of his fellow-members. It is the board duly convened and acting as a unit that is made the representative of the company. The assent or determination of the members of the board acting separately and individually is not the assent of the corporation. The law proceeds upon the theory that the directors shall meet and counsel with each other, and that any determination affecting the corporation shall only be arrived at and expressed after a consultation at a meeting of the board attended by at least a majority of its members. As the only powers conferred upon directors are those which reside in them as a board and when acting collectively as such, the individual consent of a majority of the members acting separately is not enough to ratify the unauthorized appropriation of the money of the bank by the defendant. Ang. & Ames Corp., § 504 et seq.; Morawetz Priv. Corp., 247; Field Corp., § 242; Baldwin v. Canfield, 26 Minn. 43; First National Bank v. Christopher, 11 Vroom, 435; 29 Am. Rep. 262; Junction Railroad Co. v. Reeve, 15 Ind. 236; In re Marseilles R. Co., L. R., 7 Ch. 161; D'Arcy v. Tamor, etc., R. Co., L. R., 2 Exch. 158; Schunn v. Seymour, 24 N. J. Eq. 143; Cammeyer v. United German Churches, 2 Sandf. Ch. 186; Edgerly v. Emerson, 23 N. H. 555; 55 Am. Dec. 207; Stoystown & Greensburg Turnpike Road Co. v. Craver, 45 Penn. St. 386; Keeler v. Frost, 22 Barb. 400. See also the following cases, which are somewhat analogous and applicable: Aikman v. School District, 27 Kans. 129; Mincer v. School District, id: 253; Comrs. of Anderson Co. v. P. & F. R. Co., 20 id. 534; P. & F. R. Co. v. Comrs. af Anderson Co., 16 id. 302; Ilerrington v. District Township of Liston, 47 Iowa, 11; McCortle v. Bates, 29 Ohio St. 419. The conclusion which we have reached renders it unnecessary to consider the other questions so much and so well argued by counsel with regard to the relations existing between the cashier and the board of directors, and which both of them sustain toward the bank, and whether the doctrine of ratification can have application to a transaction wholly between the board of directors and the cashier. Logan County National Bank v. Townsend. The ruling of the District Court disallowing the plaintiff's motion for judgment non obstante veredicto will be reversed, and the cause remanded with directions to enter judgment on the special findings of the jury for the additional amount appropri ated by the defendant without authority of the bank as interest on demand certificates of deposit, in accordance with the plaintiff's application. Judgment reversed and cause remanded. All concur. LOGAN COUNTY NATIONAL BANK V. TOWNSEND. (Ky. Ct. of App., Feb, 10, 1887.) Verdict-when it must fix the exact amount. Agency — ratification — bank investing in securities contrary to law. The provision of Civil Code of Kentucky, § 329, that a general verdict that either party is entitled to recover money of the adverse party must assess the amount of recovery, does not apply where the amount is not disputed, but involves simply an arithmetical calculation. Where the cashier of a bank purchases bonds without authority of the bank, afterward appropriates them to his own use, it is estopped to deny the authority of the cashier. Where one sells bonds to a National bank at a certain price, the bank agreeing to resell them to the vendor at the same price or less; but refuses to resell them, held, in a suit for the breach of contract, that the bank may not deny its authority to buy the bonds. A PPEAL from Circuit Court, Logan county. Browder & Edwards, for appellant. John S. Rhea and Wm. Lindsay, for appellee. LEWIS, J. Appellee states in his petition that in June, 1879, he sold and delivered to appellant bonds of the county of Logan of the face value of $12,800, for which it paid him at the rate of sixty-eight and one-half cents on the dollar, and as a further consideration agreed to replace the bonds, upon demand, at the same price or less; that he has offered to repay the amount so Logan County National Bank v. Townsend. paid to him therefor, and demanded the return of the bonds, which appellant refused to deliver, and hence he sues for a breach of the contract, and asks judgment in damages for the amount of the difference between the price of sixty-eight and one-half cents paid by him and the par value of the bonds, which he avers they were worth when the demand was made. Appellant denies it purchased the bonds or made the agreement to replace them, as alleged in the petition. It seems to be established, that at the time mentioned, appellee sold the bonds, at the price and upon the terms stated, to H. Barclay, Jr., who was the cashier of appellant, the bank, and the issues of fact are whether he did so on his individual account or for appellant. Upon these issues the jury returned the following special findings: "Did Townsend sell the bonds to the defendant, the bank, or to Hugh Barclay, Jr.? Answer. To defendant bank. Q. What was the contract made at date of sale? A. That defendant would replace the bonds to plaintiff at the price paid at the time, or less.". They also returned the following general verdict: "We of the jury find for the plaintiff." And thereupon the court rendered judgment for the sum of $4,032. As the testimony of both appellee and Hugh Barclay, Jr., tends to sustain the special as well as the general verdict, we cannot say they are palpably against the evidence, and are not therefore authorized to disturb them. It is contended that the court erred, to the prejudice of appellant, in rendering judgment for $30 in excess of the amount proved. The amount for which the judgment was rendered is the precise sum of the difference between the amount paid to appellee at the rate of sixty-eighty and a half cents on the dollar and the par value of the bonds; and although the evidence shows some of the bonds were paid for at the rate of sixty-nine cents on the dollar, which would make about the difference of $30 mentioned, yet the court had to be controlled by the uncontroverted allegations in the petition in respect to the amount paid. Section 329 of the Civil Code provides: "If, by a general verdict, either party be entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery." But this section was clearly not intended to apply VOL. III-57. |