Page:North Dakota Reports (vol. 1).pdf/430

 Fuller v. Scott, 8Kan. 25; Story, Part. §108; Credit Co. v. Howe Machine Co., 54 Conn. 387.

, J. The findings of the court show that in 1883 the defendants Winslow and Allen, together with John A. J. Sheets and Samuel M. Bickford—the two latter now deceased, and their administrators being defendants herein—were copartners engaged in the banking, real estate and loan business at Jamestown, Dak. T., under the firm name of “North Dakota Bank.” Allen was the managing member of the firm. The firm had about $1,300 on deposit in the First National Bank of Jamestown. The defendant Robert E. Wallace was president of the latter bank. This bank was in failing circumstances. Wallace needed $5,000 to help him out of the embarrassments connected with the failure of the bank, and he proposed to Allen that, if the North-.Dakota Bank would aid him in obtaining a loan of that amount, he would secure the deposit of that firm in the said First National Bank. Allen, in his individual name, opened a correspondence with the plaintiff, Clarke, who was a non-resident, which resulted in obtaining a loan from Clarke to Wallace for the required amount, the note to be guaranteed by the North Dakota Bank. Accordingly Wallace executed the note, and Allen guaranteed it in the name of the North Dakota Bank, and the money was paid over to Wallace. Plaintiff Clarke, loaned the money largely on the credit of the North Dakota Bank. Wallace secured the deposit of the North Dakota Bank in the First National Bank by delivering collaterals to Allen, and the amount of the deposit was subsequently realized out of the collaterals. Allen had no express authority from the other members of: the firm to guaranty the note of Wallace, nor did the other members of the firm have any knowledge of such guaranty, or ever in any manner ratify the same, nor did they, prior to the bringing of this action, have any knowledge that the deposit in the First National Bank was paid from the proceeds of collaterals delivered by Wallace to Allen.

This action, so far as these appellants are concerned, is brought on the guaranty heretofore mentioned, the defense being lack of authority on the part of Allen to thus bind the firm. The contract of guaranty was entered into contemporaneously