Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-14
OREGON SUPREME COURT DECISIONS
ie1i Published By Courtesy Of T. A. Reporter Of the
Supreme Court
lOrter Of Ae

the checks. To the question, at was
at that time that Mr.. Tschirgi told
you to sign his name on that check
Mr.. Dunaway answered, 'I didn't say
that, told him what l would do and
he said, all right" On cross ex-
animation, to the question. "You
knew as banker, after they (the
were certified, that the bank
would be holden?" Mr.. Dunaway an
swered, "Yes, sir. then l knew it was
customary, If the cashier said 1t
would be paid, 1t would be paid"
The other evidence on the part Of
plaintiff tended to corroborate Mr..
Dunaway's testimony, but there was
no other proof of any authority given
to the latter to accept the checks for
the Bank of Brogan.
At the close of plaintiffs case, de-
fendant's counsel moved the court
for a nonsuit which was denied. We
will, however, pass this and consider
the whole record upder Sec. 8, Art
VII Of the constitution, which among
other things, provides that "Until
otherwise provided by law, upon APP
peal Of any case to the supreme court
either party may have attached to the
bill Of exceptions the whole testi-
mony, the instructions of the court to
the jury, and any other matter ma
terial to the decision of the appeal.
If the supreme court shall be of
opinion, after consideration of the all
matters thus submitted, that the
judgment of the court appealed from
was such as should have been rem
dered in the case, such Judgment
shall be affirmed, Notwithstanding any
error committed during the trial; or
If, in any respect, the Judgment ap-
pealed from should be changed, and
the supreme court shall be of opin-
ion that 1t can determine what judg-
ment should have been entered in the
court below, it shall direct such
judgment to be entered in the same
manner and with like effect as de-
crees are now entered in equity
cases on appeal to the supreme
court"
The evidence on behalf Of defendant
tended to show that E. L. Tschirgi, as
cashier of the Brogan bank, informed
Dunaway that Morrison & Son had
no funds in the Bank of Brogan;
that their account was overdrawn
and the firm was at that time owing
the bank on some other paper; that
his bank therefore could not pay the
checks unless the funds were there;
but that they would take care of the
checks If certain remittance in full
came from Weiser; that he did moi
empower Mr.. Dunavay to accept the
checks for defendant; that the checks
were not paid for want of funds on
deposit by Morrison & Son.
Numerous errors are assigned
among them the Introduction Of the
checks and the testimony relating tC
I
the making of the memorandum 20
X. by Tschirgi, cashier" and the In
structions of the court submitting
the same to the jury, to all Of which
exceptions were duly reserved
by defendants counsel GivinS
to the notation, 20. K by Tschir
81, cashier" on the face of thu
checks, all the meaning that may b.
claimed on account thereof, we de
not think that this memorandum pur
ports to be signed by the Bank o.
Brogan or by Tschirgi, its cashier
At the most It appears to be nota
ton made by Mr.. Dunaway, cashier
of the Bank of Vale, Indicating tha
Tschirgi, cashier Of the Bank of Bro
gan, had approved the checks verbal
ly over the telephone. Tschlrgi, as
such cashier, had no implied author.
ity to authorize Mr.. Dunaway TO ac.
cept the checks for the Bank of Bro.
gan, and there is no evidence in the
record that the defendant bank, OF
any officer thereof, ever empowered
Tschirgi to delegate such authority tC
Mr. Dunaway. Tschirgi cashier Of
the Bank of Brogan, was its agent
and the general rule is, that an agent
in whom trust or confidence is re.
posed, or who is required to exercise
judgment may not lntrust the per
formance of his duties to another; 81
Cyc. 1925; Dorchester and Milton
Bank v. New England Bank. 1 Cush
I177; Emerson v Providence Hat Man
ufacturing company 70 Mass. 200.
Mr. Dunaway at the time OF the al
legged acceptance Of the checks, was
the vice president and acting cashier
Of the Bank OF Vale. One cannot be
a marty. and in the same Transaction