Wyckoff v. Johnson

Citations

• 2 S.D. 91
• 48 N.W. 837
• 1891 S.D. LEXIS 10

Syllabus

<p>1. The plaintiff, who sued as receiver of a national hank, complained upon a promissory note, describing it, alleged to have been made and delivered to the bamc by defendant. Defendant answered that he made a note of the tenor of the one described in the complaint, which, since its delivery to the payee, (said bank) had been, without his knowledge or consent, and at the instigation of said bank, materially altered; that the note so altered was the note sued on, but by reason of said alteration it was not his note; and that he never made or delivered it. Held, that this did not constitute a denial of the making of the note which plaintiff alleg'ed as his cause of action.</p> <p>2. Upon the trial it was conceded the alteration was made by the cashier of the bank, but plaintiff insisted that such act of the cashier was unauthorized by and did not hind the bank. Held, that defendant, was entitled to show by the books of the bank that the note had been carried on the books of the bank as a discount for the amount to which it had been so altered, as evidence tending to show an adoption or ratification by the bank of such alteration; and that the knowledge of the cashier as to the condition of the discounts of the bank was the knowledge of the bank. Held, further, that, although in the absence of fraud plaintiff might, notwithstanding the alteration, recover on the original consideration, still when he undertook to do so defendant was entitled to show any defense he might have made to an action on the original contract; and the refusal of the court to allow defendant to prove the entire contract upon which the indebtedness rested, and any contemporaneous agreement between the parties, which be came apart thereof, was error.</p> <p>3. A principal cannot avail himself of the unauthorized act of his agent, so far as it is advantageous to him, and repudiate its obligation.</p> <p>(Syllabus by the Court.</p>