Dissenting. — I dissent.
The argument on the resubmission of this appeal convinced me that the original opinion filed contained certain inaccurate statements of fact, inadvertently made, which led to incorrect legal conclusions. The present majority opinion is an adoption of the previous opinion “with certain omissions and additions.” I do not believe the “additions” sufficiently *368portray the factual background which justified the trial court in rendering judgment in favor of respondent.
Taking into consideration matters stressed in the petition for rehearing, and subsequently in oral argument, the facts appear as follows: L. Moretti, who spent the greater part of his time in Switzerland, caused to be incorporated a company which, for the sake of brevity, may be referred to as the land company. The board of directors consisted of Moretti, A. E. Morelli and D. Morelli, the Morellis each holding one share of stock and acting as secretary-treasurer ¿nd vice-president of the company respectively. As subsequent events proved the Morellis were merely dummy directors. Poletti was employed by the company as a bookkeeper and accountant. Some time thereafter, the canning company referred to in the majority opinion was organized, and, needing funds for operation, Moretti agreed that the land company might borrow from appellant bank the sum of ten thousand dollars to be placed to the credit of the canning company. Such indebtedness, however, was to be repaid by that company. From such time until the date of the obligation of April, 1925, in connection with the latest renewal of which this suit arose, various amounts borrowed for the use of the canning company were repaid the bank. On April 28, 1925, bookkeeper Poletti, who had assumed enlarged managerial responsibilities, without objection at least from the two Morellis, obtained a loan from the bank for $15,000 ($5,000 in excess of the amount originally authorized by Moretti). The note evidencing this indebtedness was signed by A. E. Morelli as secretary. There was also furnished the bank in this connection a copy of a resolution authorizing the loan, certified by secretary Morelli to have been adopted at a purported meeting of the board of directors. of the land company. While notes renewing this loan were made from time to time, the indebtedness was never fully paid. Bookkeeper Poletti subsequently became a director of appellant bank, after which the bank dispensed with the requirement of the name of an official of the land company in connection with renewals, simply advancing the money to the canning company, debiting the account of the land company and taking the latter’s notes signed by Poletti. Notices of default in interest payments were mailed by the bank to the land company but when paid were marked “Paid by Poletti.” At *369various times financial statements of the land company, prepared by the land company’s bookkeeper Poletti, were furnished the bank of which, as we have seen, Poletti was a director. These statements did not show the indebtedness to the bank. Copies of such — to put it mildly — inaccurate financial statements were forwarded to Moretti in Switzerland. If nothing further appeared, there would be no divergence of opinion as to the propriety of affirming the judgment rendered by the trial court. The problem seems to be simple, but, as said by Mr. Justice Kelly, pro tern., in Bank of America v. National Funding Corp., 45 Cal. App. (2d) 320 [114 Pac. (2d) 49], “at this point simplicity departs,” and I may add, harmony of views with my learned associates on the facts, reasonable inferences dedueible therefrom and the law applicable thereto.
The majority opinion holds that “the facts establish a clear case of estoppel, if not a case of implied authority. ’ ’ In support of the theory that there was an implied authority bestowed upon the bookkeeper-manager Poletti to sign the promissory note in question, the majority opinion cites Union Oil Co. v. Purissima Hills Oil Co., 181 Cal. 479 [185 Pac. 381]. In the Union Oil ease, it was an officer of the corporation, the president-manager, who was, not impliedly, but expressly, authorized by the by-laws of the corporation to procure necessary appliances to conduct the business of the corporation. In the majority opinion herein attention is also called to the fact that A. E. Morelli in substance testified that he approved the signing of the notes by Poletti; in fact, that he authorized Poletti to sign. A. E. Morelli could not bestow any greater authority than he possessed. If a director, secretary or treasurer may, without direct authorization of a corporation, deputize its manager, assuming Poletti occupied such position, to borrow money in its behalf, then there is no legal reason, with the majority opinion as a precedent, why a bookkeeper, an ordinary clerk or the office boy may not be so deputized. The fact is that A. E. Morelli retired from active participation in the affairs of the company in the summer of 1930. The note in controversy is dated June 4, 1934. Many of the preceding notes have been lost, though several were introduced as exhibits. The note dated May 5, 1924, for $20,000, signed by A. E. Morelli as secretary of the land company was paid in cash. All of the notes subsequent to the *370resignation of A. B. Morelli were signed in the name of the land company “by L. Poletti,” without any designation of position as manager or otherwise. From the inception of the transaction, payments of principal and interest were made principally by' cheek drawn on the account of the company; some, however, were made from Poletti’s personal funds, the bank’s records bearing the notation “paid by Poletti” or some equivalent indication that payment had been made by him and not the land corporation. It is true that upon a few occasions Poletti signed various communications as manager, treasurer or secretary. He claims that when A. E. Morelli severed his connection with the corporation, he appointed Poletti assistant secretary and treasurer. Assuming this to be true, A. E. Morelli had no authority to appoint or recognize Poletti in any capacity except bookkeeper. It is noteworthy that Poletti did not sign his letters to Moretti in Switzerland, the person who controlled the corporation, as secretary or otherwise. Likewise it is noteworthy that D. Morelli, the vice-president, was always available to sign any document that required the signature of an officer of the company. Also, it is interesting to find that all contracts, leases, etc., during this period were signed by D. Morelli, with the exception of the promissory notes connected with this transaction, and that the vice-president, D. Morelli, did not know of the indebtedness to the bank until after the 1934 note had been signed by Poletti.
In 1931 Moretti, by letter to the land company, expressed “great astonishment” that the bank still held a note against the land company and that the amount was in excess of $10,000. He stated that he had disapproved of the entire transaction in 1926; that he had directed the indebtedness to be paid from the funds of the canning company; that he believed the land company should be indemnified and that at any rate the land company should not be responsible as it appeared the loans were made without approval of its board of directors. Poletti replied in substance that everything had been done to comply with the previous directions of Moretti. He held out hope that the cannery financial difficulties would be cleared up, the canning plant sold and the bank paid. Moretti responded advising Poletti’s withdrawal from the company, and suggesting that Poletti arrange matters with a Mr. Respini, who would thereafter represent Moretti. There *371is no evidence that Respini approved the continuation of the loans from the bank. Poletti did not withdraw but continued to make the loans purportedly obligating the land company by his personal signature. Poletti’s purpose in disobeying Moretti’s instruction appears in the evidence. Poletti did not own any interest in the land company, but he did hold stock in the canning company. It was important to him that the canning company continue in business, as evidenced by his statement “I am personally losing the snug sum of more than $8,000.”
The bank knew it had no authority to loan the money to the land company on Poletti’s signature. A purported authorization on file did not confer such power upon him. Poletti testified that the bank never asked him for his authority to sign the various notes. The bank attempted some explanation that Poletti was an assistant secretary of the land company, and that it held a card signifying such fact. The card could not be found. If in fact such a card had been filed with the bank, the bank nevertheless did not request Poletti to sign as assistant secretary or otherwise. No act conferring upon Poletti ostensible authority to negotiate the loans for the company was ever communicated to the bank. The bank knew or should have known that the loans did not appear upon the financial statements rendered. It knew that certain principal and interest payments had been made by Poletti personally. The evidence shows that the bank relied upon the acts of bank director Poletti and not upon the declarations of the land company.
Moretti in Switzerland had a right to assume that Poletti would follow his instructions, and there was no reason for him to suppose that the bank would permit an unauthorized bookkeeper to negotiate a loan obligating the land company. Neither the land company, nor Moretti, its principal stockholder, was ever apprised of the real facts, and the bank knew, or should have known, that Poletti was not authorized to make the loan. The doctrine of estoppel is not applicable to the facts of this ease. Moretti’s silence with regard to a matter of which he was unaware could not amount to a ratification. Morelli’s purported delegation of authority was unauthorized and not even communicated to the bank. If the bank was misled, it was only through the conduct of one of *372its directors. (See Montrose Land & Inv. Co. v. Greeley Nat. Bank, 78 Colo. 240 [241 Pac. 527].)
In my opinion the evidence is amply sufficient to sustain the findings of the trial court, and, for the reasons stated, it is my conclusion that the judgment herein should be affirmed.
Respondent’s petition for a hearing by the Supreme Court was denied October 2, 1941.