On May 1, 1925, the following opinion was filed: On reargument we have given further and attentive consideration to the whole case and, putting aside for the moment all other *Page 218 questions, consider that the evidence made an issue as to whether Mr. Lund had apparent or ostensible authority to sell the mortgages for the bank in such fashion as to make it liable as a party, the seller, on the contract of sale. In the evidence supporting that conclusion is the testimony of Mrs. Picha that Mr. Swenson, defendant's cashier, assured her, in the bank, in response to a question propounded by her to both Mr. Swenson and Mr. Lund, that the mortgages were all right and that "the bank wouldn't sell them to you if they were not all right," that "they (defendant) would do all of the collecting of interest * * * and if we wanted to turn them back at any time that they would take them right off our hands."
The jury was told that if defendant's "managing and executive officers" had permitted Lund to sell the mortgages upon the representation that they were the property of defendant and that as assistant cashier he was selling them for defendant, they might then consider the "alleged fraud and deceit of Lund." On the question of apparent authority as distinguished from actual authority, no further or different charge was asked for at the time. The issue was thus litigated and submitted and has been disposed of adversely to defendant by the verdict and findings and there is nothing warranting interfering with the result or the method whereby it was reached.
Attentive consideration has been accorded all of the arguments advanced by appellant. The point that if there was no contract between plaintiffs and defendant there can be no recovery based on a rescission, is of course sound, for, if there was no contract, there was nothing to rescind. But, if there was a contract, it is no obstacle to rescission that it was made binding on defendant by an agent having apparent rather than actual authority.
The issue of Lund's agency having been resolved against defendant, the finding of a contract makes clear the way to rescission by plaintiffs, there being evidence that they were induced to purchase the mortgages by representations which as to them, under the circumstances, might be considered fraudulent. The triers of fact have so determined and the record is such that the result must be considered final. *Page 219