Carlton v. Moultrie Banking Co. ( 1930 )

Gilbert, J.

I dissent from the judgment of reversal based on the complaint of the direction of the verdict. The officers of the bank, president and cashier, both testified that attorney Kline did not represent the bank in making the loan to Mrs. Carlton, and had no authority to so represent the bank. They admitted that Kline and his law firm did often represent the bank in making collections, including the claim against John A. Carlton. Also, they admitted that Kline was the only attorney the bank dealt with in making the loan to Mrs. Carlton. Neither of these admissions authorize a finding that Kline was representing the bank in this transaction. This evidence, construed in the light of and in connection with the positive and uncontradicted evidence that Kline had no authority to represent the bank and did not do so, demanded a finding that Kline did not represent the bank. Since the only contention of notice to the bank of the defenses set up is based on the theory of Kline’s agency for the bank, it follows that the court properly directed a finding against the defendant. It is true that the brief of evidence contains a statement by John A. Carlton, witness for Mrs. Carlton, that Kline told him at the time the loan was negotiated that he represented the Moultrie Banking Company; but the rejection of this very evidence is made a ground of the motion for a new trial, and the evidence is obviously inadmissible. It should be given no probative value in these circumstances. I concur in the several general principles of law stated in the first three headnotes, but can not concur that they are properly applicable to the facts of the case, nor can I concur in some of the comments on the effect of the evidence. I dissent from the rulings in the fourth headnote dealing with the admissibility of evidence. In substance each of the grounds is based on a refusal of the court to permit proof of agency by declarations of the alleged agent. Nothing is better settled than the negation of the proposition. No error is shown in these grounds. Mr. Justice Atkinson concurs in this dissent.