The defendant’s bank, if organized under the act of congress of June 3,1864, as I think it was, was authorized to negotiate, buy and sell, or exchange, as a corporation, the kind of property which is the subject of this action. The president of the bank, as an individual, was not prohibited from doing the same act. The defendants advertised themselves as agents of the government to perform that kind of agency, by posting up conspicuous notices upon *378cards in their banking room, and exhibited such notice to the public from their windows. This apparent authority to third persons was the real authority. They could perform this agency for their bank, only through the ordinary methods of performing corporate duties, viz., by their executive officers. If the bank performed this duty in the case before us, the president and cashier would be naturally, and were the ordinarily legitimate agents to perform that duty; and the indicia of their official or executive action would accompany the evidences given or received. In that respect, the receipt given in this case is peculiar. It presents upon its face an official caption showing corporate agency, with the names of the executive agents of the corporation. None of these indicia belong to individual transactions. Then follows the body of a receipt, signed, it is true, by but one person, and in the language of the first pbrson singular; but that person is the same whose official character stands above, upon the same instrument, as the corporate agent. Possessing such a form, with no extrinsic evidence to change its character, it is an instrument, prima facie, at least, of a corporate act. There was, then, not only this holding out to the plaintiff of a negotiation with him by the bank, but the bank itself treated the transaction as its own, with itself and with others. Its cashier, in whose presence the transaction was had, on the same day, by a communication headed by the same corporate agency caption, with the names of the same executive officers of the corporate agency, communicated with a noted banking house in New York the intent of the defendants to forward the notes in question for sale for the defendants, with directions to place the proceeds, when sold, to the credit of the defendants; and signing the notice and direction as cashier of the defendants. These instructions were obeyed by the New York house, and the proceeds were credited to the defendants. Up to this point, as a question of fact, this was no individual transaction; and no judge, upon this presentation, would have been justified to have submitted it to a jury to find whether this was an individual transaction. These seven. *379thirty notes were taken by the defendants from the plaintiff to be exchanged for him. They did not perform their agreement. They were liable to the plaintiff for the avails, or the value, these avails which they had put to their own credit. They belonged to the plaintiff. If the exchange to be made may be presumed to have been intended by the parties to include the right to sell the one and purchase the other, they were then the plaintiff’s brokers, and had failed to perform their whole duty to him. The money in their hands was the plaintiff’s money, and, upon demand, he was entitled to receive it. It was money received by them to his use.
I have, thus far, treated this case as if the transaction was between the plaintiff and the defendant, to see whether the ruling of the judge could be sustained in directing the jury to find a verdict for the plaintiff, and that there was no question of fact for the jury. If this theory of the judge was right, the judgment is right; and we have said that upon the face of the papers this theory was right.
But suppose it was the intention of Hasbrouck, the defendant’s president, to make it his individual transaction; some evidence was offered tending to prove this; it must be that the plaintiff also so understood it, or it did not then amount to a contract; but assume this also, how do the defendants then get title to this money ? The law will presume that a contract made in the bank, in banting hours, by its officers, carries knowledge to the, bank itself of the chaiÉcter of the contract. If that contract was with Hasbrouck individually to exchange these notes, the bank then knew these notes had not been so exchanged; if it was to sell them and purchase five-twenty bonds, the bank knew this contract had not been performed. They were not holders of this money in good faith; the bank itself, even upon that theory, had sold these bonds; they had paid no consideration for them; they were neither Tjona fide holders of the bonds from Hasbrouck, nor of the proceeds of them. The knowledge of Hasbrouck, the president, and of Osterhout, the cashier, of the manner that these bonds had been obtained, was knowledge to the bank. If, then, this was *380ail individual transaction of Hasbrouck, it did not change the question as to his knowledge of the transaction; still, as president of the bank, he knew the property was the plaintiff’s property; neither he nor the cashier, nor both together, could by any entries in the books of the defendant, of credit to themselves, or credits to Hasbrouck, without plaintiff’s consent, change the title to this property from the plaintiff to themselves or to Hasbrouck. There is no evidence that Hasbrouck bought them, and the receipt he gave negatives this idea. What, then, is the error of the court in refusing to submit this immaterial question to the jury ? But it seems to be the theory of the defendant that these notes were purchased by Hasbrouck of the plaintiff, and that the bank purchased them of Hasbrouck on the same day, and the books of the bank, to show such to be the transaction, was given in evidence by them under plaintiff’s objection. The bank book did show that Hasbrouck was credited on that day with $10,000, and when returns came from the sale in Hew York he was credited with $1,119.38 more, the amount of the premium, but no such agreement is proved.
It can hardly be admitted as a sound legal proposition, that such entries by the bank officers, or by their clerks, unknown to the plaintiff, can be binding upon him or affect his legal rights; that was not the plaintiff’s contract-; the defendant could not make one for him; his contract was in writing; prima jhcia the writing is the true legal contract. Until that agreement is proved to be different, crediting Hasbrouck with $10,00.0, which the bank knew did not belong to him, was a fraud, and permitting Hasbrouck to draw it out, if he did so, was a fraud. Whether done by an innocent clerk or otherwise, the bank knew it was a fraud. I mean, that is the legal presumption, because the law casts the knowledge of the mala fides on them. If, instead of drawing it out afterward, Hasbrouek’s account was overdrawn at the time, and this added so much to the defendant’s security against Hasbrouck by making his account so much better, and themselves so much richer, the fraud is no less. So that *381in this view, it seems to me to be immaterial whether the transaction between the plaintiff and Hasbrouelt was with the latter as an individual or as the representative of the bank; the bank cannot he a bona fide holder of this money. By the testimony of the cashier, it had been drawn out before it was credited to Hasbrouelt; so the bank gave no consideration for it. If this view of the case is correct, there was no material question of fact to be submitted to the jury. The legal propositions, so ably argued by the defendant’s counsel, have not, in my opinion, a basis of fact upon which they can be applied. They are sound enough upon the assumed case, but do not require discussion in the case before us. I think the judgment should be affirmed.
Judgment affirmed.