[27] I dissent in this case because the defendant, Freddie Ladwig, had no authority to bind the corporation, Williams Grain and Feed Company, Inc., and did not do so. The demurrer of this corporation to the evidence in this case was sustained because it was shown that the defendant, Ladwig, was not an agent or employee of the corporation. There is no question but that he had no authority to draw on the bank account of the corporation.
[28] Ladwig was responsible for the plaintiff, McGinnis, turning over the mung beans to Ladwig who in turn shipped them to Johnston in Enid. Ladwig's employer, the partnership Williams and Sons Feed Company, collected for the beans. Ladwig did not know whether the check or draft which he gave McGinnis was good or not. All such checks or drafts he issued had to be approved by someone in authority in the corporation. The corporation had never authorized the defendant, Ladwig, to draw on its bank account by giving a signature card to the Citizens National Bank in El Reno. The bank never paid on any drafts or checks signed by Ladwig unless it was approved by the corporation through its duly authorized agents. If Ladwig had issued drafts or checks on the corporation, he had no assurance that they would be taken up.
[29] Frank Williams, a member of the partnership, Williams and Sons Feed and Seed Company, testified he gave Ladwig authority to draw the draft on the corporation. He never showed that he had the authority from the corporation to do so and he knew that the bank would not accept the draft on Ladwig's signature alone. Although there is no evidence in the record that the corporation, Williams Grain and Feed Company, Inc. of El Reno, Oklahoma, ever properly authorized Freddie Ladwig to draw drafts or checks on its account in the Citizens National Bank in El Reno, Ladwig purported to have such authority when he issued the draft or check to plaintiff, McGinnis.
[30] I think that a proper interpretation of 48 O.S. 1961 § 40[48-40], makes an unauthorized signer of a check or draft personally liable on a check or draft he issues. This Court has never passed on this question but many years ago Justice Cordozo, when a member of the New York Court of Appeals, wrote an opinion in which this question was disposed of. That was the case of New Georgia National Bank v. J. G. Lippmann, 249 N.Y. 307,164 N.E. 108, 60 A.L.R. 1344, and on this point he said: "We think the proviso that the agent or representative shall not be liable on the instrument "if he was duly authorized" to sign, carries with it a fair implication that he shall be so liable if not authorized. * * *" The case at bar is a fine example of the fairness of the rule because we have a man disposing of the fruits of his labor for a consideration and losing it because the defendant pretended he had authority to draw on the funds of one not his employer and from whom he had no authority. Certainly the producer should have judgment against the unauthorized agent.
[31] I dissent. *Page 863