dissenting.
I respectfully dissent from the majority opinion.
The evidence before the court on the motion for summary judgment shows without any contradiction that the defendant Shunk was not in any way deceived when he borrowed money from the bank on the note in suit and in turn loaned the money to Heintzelman, *208taking Heintzelman’s note in consideration of the loan to himself. The evidence shows that he knowingly made a personal loan to Heintzelman because Heintzelman was in financial difficulty. Shunk himself suggested that he would make the personal loan which Heintzelman had requested, if the bank would lend the money. The evidence shows, also without contradiction, that Shunk knew from Heintzelman himself that the latter was in financial difficulty. In fact, Shunk’s counterclaim alleges: that he (Shunk) was informed by Heintzelman that the latter needed “$75,000.00 to clear up his difficulties with an estate, with Bank President’s [Heintzelman] brother and to dear up debts at bank.” (Emphasis supplied.) The pleadings contain no allegation that Shunk relied upon any representation by Heintzelman that the latter’s indebtedness to the bank was within lawful loan limits.
The evidence shows that whatever representations Heintzelman made, he was making them on his own behalf. It further shows that Shunk was relying upon Heintzelman to pay him and not upon the bank. The only allegation in the counterclaim relative to Heintzelman’s liability to the bank being in excess of loan limits is simply that this fact was unknown to Shunk.
There is no evidence in the record which tends to show that'- Heintzelman, in requesting the loans to himself, was acting on behalf of the bank and in the course and authority of his employment with the bank.
A bank officer, in negotiating a loan from a third party on his own behalf, is not acting within the scope of his authority as a bank officer and his acts do not bind the bank. Farmers Nat. Bank v. Ohman, 112 Neb. 491, 199 N.W. 802 (1924); Cozad State Bank v. Mc-Laughlin, 128 Neb. 87, 258 N.W. 36 (1934); Schwenker v. Teasdale, 206 Wis. 275, 239 N.W. 434 (1931). There is no evidence that Heintzelman was acting on behalf of the bank in arranging his personal loan so that he could pay the bank.
*209The defect in the majority opinion is that it does not analyze the pleadings in terms of the essential element of fraud, nor the evidence submitted in connection with the motion for summary judgment to determine whether there are any material facts in dispute on the issue of the alleged fraud of the bank; rather, it assumes the materiality.
Shunk also complains that the court erred in limiting discovery by sustaining objections to certain interrogatories. An examination of the interrogatories to which objection was sustained indicates that they are not relevant or material to the proof of any issue in the case, or likely to lead to any such evidence.
I would affirm the judgment of the trial court.