Newsom, as Liqdr. v. Gill, as Recvr. ( 1932 )

The majority opinion is based upon the proposition that the Bank not having authority from Lieberman to execute the notes as Trustee for him was guilty of an ultra vires act in that it attempted to lend its credit to Lieberman.

Under the charter of the Bank it had the power to act as Trustee for Lieberman in the transaction. It had power to purchase and sell real or personal property in the same manner and to as full extent as natural persons might dispose of or encumber property of the same kind. It had the power to receive and hold properties in trust; to accept and execute the office of agent or trustee of any kind whether conferred by a person, corporation or court. It was required to have a trust department with a special set of books. See Chap. 4460 Acts 1895.

The Bank also had the power to acquire shares of stock in other corporations and of managing them upon obtaining a majority of the shares. Therefore the case of Cottondale State Bank v. Oskamp-Nolting Co., 64 Fla. 36, 59 South. Rep. 566, is not analogous. It therefore had the power to act as trustee or agent for Lieberman and, having such power, it put into the channels of trade its promissory notes signed in the capacity in which it was empowered to act under its charter and the notes in due course came into the hands of an innocent purchaser for value before maturity, according to the declaration.

The holder of the notes discovered afterwards that the Bank had not obtained from Lieberman authority to act for him as his agent or trustee and thereupon brought its action against the person pretending to be such agent, in conformity with a well recognized and universally accepted principle of law. See Phillips Co. v. Hall, 99 Fla. 1206, 128 Sou. Rep. 635; 2 C. J. 808; 21 R. C. L. 847.

The rule also applies to one signing a contract as trustee. See 26 R. C. L. 1317.

To say as the majority opinion holds that the Bank loaned its credit to Lieberman while admitting that Lieberman neither asked for such credit nor was a party to the transaction is to beg the question.

The Bank being empowered under its charter to act as the agent of Lieberman purported to act as his agent or trustee without his authority and thereby put its notes into circulation which came into the hands of an innocent holder for value before maturity.

I think the demurrer was properly overruled and the evidence supported the verdict which was rendered upon the issue presented by the pleas which were not sustained.

The judgment should be affirmed.

BROWN, J., concurs.