Page:Federal Reporter, 1st Series, Volume 10.djvu/263

 THIRD NAT. BANK V. HARBISON. 251 �fiustain while cavrying ont the alleged illegal ventures in his own name, but on his principiil's atcount. �" In either event, it would follow that the ageot could not recover on these notes as against his principal, the maker of the notes, if the contracts or ' deals,' as they are termed, were mere wagers on the fluctuations in the mar- ket priee of grain, and for that reason unlawf ul. Obligations thus intimately connected with an illegal transaction, and furnishing an inducement to the same, could not be supported as between the original parties, nor could they be enforced by the present plaintifE if it took the same withknowledgeof this infirmity. �" I have no difiiculty whatever in flnding f rom the evidence that the parties, both principal and agent, had in view mere wager contracts upon the price of grain, and that the losses which the agent or broker eventually paid were paid on contracts which, as between the broker and the parties with whom he dealt, were mere bets upon the future market priee of wheat, no delivery having been made or contemplated. To flnd otherwise on the evidence before me would involve a degree of credulity which the court does not possess. �" The case is thus narrowed to the single inquiry whether the plaintifl bought this paper with knowledge that it was not enforceable as between the maker and payee. �"The defendant would charge the plaintiff with knowledge because the payee of the note was one of plaintili's directors, and ex officia a member of the board of discount. The evidence shows, however, that the bank (the plaintifE in this action) had no regular discount committee. The president was authorized to pass upon paper without the advice of the directory. If the directors were present, they gave advice on paper offered for discount. But in the present instance it appears that the originals of the notes now in suit were accepted in the absence of the director. The director states that when he had paper of his own to ofEer for discount he stayed away from the board, and that he did so in this instance. Upon this state of facts 1 am clearly of the opinion that the bank cannot be charged with knowledge of facts possessed by the particular director, who was not present and did not act as member of the board when the paper was accepted. ■ The director was himself the payee, and was ofiering this paper for discount. "Whatever contract the bank made in accepting the paper and passing it to the director's credit, was made with the director. He not only did not assume to act as agent of the bank in this particular transaction, but he could not lawfully act in that capacity had he so attempted. Washington Bank v. Lewis, 22 Pick. 31. �" The present case is widely different from the case of Bank v. Thomas, 2 Mo. App. 367, cited for the defendants ; for in that case the paper was tend- ered by a third party, and the director, whose knowledge was held to affect the bank, was present at the meeting of the committee on discount, and voted upon the paper in the discharge of his regular duties as a bank officer. In the preseiit case the bank cannot be charged with notice of any inlirmity in the paper by any sound rule of law with which I am aequainted. Neither does the court coneur in the view that the notes in suit are void in the plain- tifl's liands, regardless of the question of notice, by virlue of the provisions of the act respecting gaming. Kev. St. 1879, c. 109. ��� �