Company v. Lansden, 172 U. S. 534; 43 Law. ed. 543; Wilkin-Hale Bank v. Herstein, 149 Pac. 1109.
It is elementary of course that false and fraudulent representations for which any principal is responsible when made through an agent must have been made in the course of his service for the principal or by the principal’s authority. In Gas Company v. Lansden, 172 U. S. 534; 43 L. ed. 543.
That a transaction which is ultra vires is void and that no rights grow out of it and no liability is incurred in such transaction except that if the corporation or its agents have received money or property in such unlawful transaction and an accounting must be made therefor. Bank of Manistee v. Bank of Milwaukee, 83 Fed. 725; Wilkin-Hale Bank v. Herstein, 149 Pac. 1109; Commercial Bank v. Pirie, 82 Fed. 799; Merchants Bank v. Baird, 160 Fed. 642.
Statement.
Bronson, J. This is an action to recover damages for fraud and deceit in the sale and negotiation of a real estate mortgage. The complaint alleges that the defendant, through deceitful and fraudulent practices, loaned $2,000 of plaintiff’s money, in its custody, upon a worthless real estate mortgage. The answer asserts that the transaction was a brokerage transaction and was ultra vires, under the National Banking Act (13 Stat. 99).
The action was submitted to a jury upon a special verdict comprising 56 questions. The verdict was favorable to the plaintiff. The plaintiff thereafter moved for judgment upon the special verdict. The defendant likewise moved for judgment in its favor upon the special verdict, or, in the alternative, for judgment notwithstanding the verdict. The trial court denied the motion of the plaintiff and made an order dismissing the action with prejudice. Judgment was so entered. The plaintiff has appealed. The facts are substantially as follows:
For many years, from 1891 to 1906, the plaintiff resided in Arthur, a town tributary to Casselton, engaged in the mercantile business. During this time he did a banking business with the defendant. He had a checking account, a merchandise checking account, and an account of borrowed money. The checking account extended from 1891 to 1908, and the loan account from 1891 until it was closed in 1905. R. C. Kittel was the president of the bank for some Io or 12 years prior to the latter part of No-
