McBoyle v. Union National Bank

THE COURT.

Upon further consideration of this case, after a rehearing before the court in Bank, we are satisfied that the conclusion reached by the court in Department is

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correct. In the opinion of Mr. Justice Sloss, there rendered, it is said that the National Banking Act does not give a national bank “power to deal in stocks

or bonds.”

The question of the right or power to deal or invest in bonds is not involved. The words “or bonds,” in the passage quoted, and subsequently, are surplusage and are stricken from the opinion. As thus amended the opinion of the court in Department is adopted as the opinion of the court in Bank.

The judgment and order denying a new trial are reversed.

The Department opinion as thus amended is as follows:—

"The action was brought to recover from the Union National Bank 599 shares of the capital stock of Burnkam-Standeford Company, a corporation. The complaint alleged that these shares, represented by certificate No. 59, were on January 3, 1907, owned by and in the possession of plaintiff Lulu May McBoyle, that she had then pledged them to the bank to secure the promissory note of George McBoyle, her husband, for $9,500, and that she .had thereafter tendered to the bank the amount due on the note and demanded re-delivery of her stock, which had been refused. The answer of the bank denied that plaintiff Lulu May McBoyle was the owner or in possession of said shares, or that she had pledged them to the bank. There was also an affirmative defense, in which the bank alleged that it had, for many years prior to January 3, 1907, been the owner of the 599 shares of stock, that on that day George McBoyle had made an offer to Charles E. Palmer, the cashier of the bank, to buy said stock for $11,000, $1500 in cash and $9,500 on his promissory note, such note to be secured by a pledge of the stock. Palmer accepted the offer, and the transaction was carried out on these lines. There are averments that McBoyle misled Palmer by fraudulent misrepresentations regarding the value of the stock, but as there was no evidence to sustain these charges, and the court found against them, we need not notice them further. It was alleged that Palmer acted beyond his authority in attempting to make the sale, that the bank, upon learning the facts, promptly repudiated the transaction, and tendered to McBoyle the $1500 received by it, with interest, and his note for $9500. The tender was refused, whereupon the bank made a deposit of the money and the note in McBoyle’s name, pursuant to Civil Code section 1500.