Summary
In State v. Lane et al., 134 Ark. 71, 203 S.W. 17, the Supreme Court of Arkansas, in construing a statute imposing an inheritance tax upon all property transferred by will, holds that, although the dower right of the widow was not subject to the inheritance tax under their law, if the wife accepts under the husband's will a bequest in lieu of such dower, the property so accepted is subject to the tax.
Summary of this case from State v. JonesOpinion
Argued March 21, 1930
Affirmed July 10, 1930 Rehearing denied September 4, 1930
Appeal from Circuit Court, Lane County, G.F. SKIPWORTH, Judge.
Suit by Pauline Downing against the Lane County State Savings Bank, a corporation, and others. Decree for defendants, and plaintiff appeals.
AFFIRMED. REHEARING DENIED.
M.W. Skipworth of Marshfield (Goss, Murphy Skipworth of Marshfield, on brief) for appellant.
Charles A. Hardy of Eugene for respondents.
This is a suit by plaintiff against the Lane County State and Savings bank for an accounting. Plaintiff deposited with the defendant bank the sum of $9,000. She was never at Florence, Lane county, Oregon, where said bank is located, and she never knew Henry Bergman, president and executive manager of said bank. Her brother, E.S. Downing, represented her in the dealings between her and Henry Bergman and all the transactions referred to herein. The amount of money so deposited by plaintiff in said bank was withdrawn and invested or loaned for plaintiff by said Bergman.
Plaintiff contends that in depositing said money and authorizing the said Bergman to invest the same for her she was dealing with the bank and with said Bergman as the executive officer of said bank, and not with said Bergman in his individual or personal capacity. Defendants contend that plaintiff, acting through her brother, E.S. Downing, authorized said Bergman to loan, invest, collect and reinvest money belonging to plaintiff in his own discretion. Plaintiff demands decree that defendants be required to state the account between plaintiff and said bank and for judgment for the amount found due and owing plaintiff from said bank. Plaintiff claims a preference as a special depositor. Decree was entered for defendants to the effect that plaintiff's complaint be dismissed and for costs and disbursements. From this decree and judgment plaintiff appeals.
This controversy is governed by the facts. The law applicable is simple and settled. Did plaintiff authorize said Bergman to invest, loan, collect and reinvest her funds as her agent? The question may be propounded in another way: Was plaintiff represented by her brother, E.S. Downing, authorizing the bank to so handle her funds without further consulting her?
E.S. Downing and said Henry Bergman were business associates and personal friends. Bergman was frequently at the home of said Downing in North Bend. Some of the money belonging to plaintiff, Pauline Downing, was loaned to business institutions owned by the said E.S. Downing and said Bergman. The charge is not made that Bergman was without authority to check on plaintiff's account with said bank for the purpose of investing her money in securities. The evidence that tends to bind the bank for the conduct of said Bergman is the testimony of said E.S. Downing, Stella Downing and Jane Chilson, the latter two being plaintiffs in two other cases of similar import against said bank. The only other evidence is the use of the bank's stationery and the employment, by Bergman in his correspondence, of the personal pronoun "we" instead of "I."
It was not within the scope of Bergman's authority, as executive officer of the banking corporation, to invest and loan money for the bank's depositors with their consent so as to make the bank liable for the acts of its executive officer. The bank's executive officer represents the bank in transacting its business. The scope of his duties does not include that of acting as broker for others. In investing and reinvesting the funds of plaintiff, Bergman was acting for her and not for the bank. There is no pretense that Bergman charged any commission, fee or remuneration in favor of the bank for his services. That it was not within the scope of his authority as executive officer to act for the depositors of the bank as a broker is well-established by the following authorities: In re Assignment of Bank of Oregon, 32 Or. 84, 88, 89 ( 51 P. 87); Shute v. Hinman, 34 Or. 578 ( 56 P. 412, 58 P. 882, 47 L.R.A. 265); Bryon v. First Nat. Bank, 75 Or. 296, 299 ( 146 P. 516); Verrell v. First Nat. Bank, 80 Or. 550, 555 ( 157 P. 813); Doerstler v. First Nat. Bank, 82 Or. 92, 100 ( 161 P. 386); Haines v. First Nat. Bank, 89 Or. 42, 48 ( 172 P. 505); Portland Bldg. Co. v. State Bank of Portland, 110 Or. 61, 66, 67 ( 222 P. 740); Miller v. Viola State Bank, 121 Kan. 193 ( 246 P. 517, 48 A.L.R. 373).
Plaintiff relies on the cases of Verrell and Carlon and others against the First National Bank of Roseburg. In all of these cases the bank was held liable because its president, without authority, drew money from the accounts of said persons and borrowed it himself. The bank was not held liable because it was acting in the capacity of a broker for the plaintiffs in those cases but because he, as president, withdrew their funds without authority: In re Assignment of Bank of Oregon, supra; Shute v. Hinman, supra; Byron v. First Nat. Bank, supra; Carlon v. First Nat. Bank, 80 Or. 539 ( 157 P. 809); Verrell v. First Nat. Bank, supra; Doerstler v. First Nat. Bank, supra; Haines v. First Nat. Bank, supra; Portland Bldg. Co. v. Bank of Portland, supra.
Plaintiff claims that her deposit was a special deposit; that it was the duty of the bank to keep it intact and hold the evidences of the investments as a special investment for plaintiff. The evidence shows, however, that the money was put in an ordinary checking account. The money was withdrawn on a simple check and invested from time to time: 3 R.C.L. 518, § 147.
It is unnecessary to detail the evidence. The learned trial judge found that plaintiff deposited her fund as an ordinary checking account, authorized Bergman to invest the fund for plaintiff, and that the bank was not liable for the nature of the investments made. His conclusion was made on the legal principle that in making those investments, Bergman, though the executive officer of the bank, was not transacting the bank's business or representing the bank, but was acting for plaintiff and represented her in making those investments. In that finding we concur because it is supported by convincing evidence.
For that reason the decree is affirmed.
McBRIDE and RAND, JJ., concur.
ROSSMAN, J., absent.