
    The Kearney Bank, Appellant, v. Froman et al.
    
    Division One,
    June 25, 1895.
    1. Evidence: corporation: knowledge of officer. Knowledge which comes to an officer of a corporation through his private transactions, and outside of the range of his official duties, does not constitute notice to the corporation; and this is true although the officer obtaining the knowledge was at the time the managing agent of the corporation.
    2. -: -: -: partnership. In an action by a bank on a note against two defendants as partners, a statement made by a director of the bank, who had no connection with its active management,- showing that he did not regard the defendants as partners is incompetent, and its admission held to constitute reversible error.
    
      Appeal from Clay Circuit Court. — Hon. James M. Sandusky, Judge.
    Reveesed and demanded .
    
      Simrall & Trimble for appellant.
    (1) The instruction number 14 given by the court of its own motion was clearly erroneous. Knowledge obtained privately by a director in a bank can not be imputed to the bank, unless it is shown to have been communicated to the bank. Johnston v. 
      
      Shortridge, 93 Mo. 227; Hyde v. Larkin, 35 Mo. App. 365; Savings Ass’n v. Printing Co., 25 Mo. App. 642; Bank v. Schaumberg, 38 Mo. 228; Hayward v. Ins. Co., 52 Mo. 189. (2) The evidence of Sam Smith as to what Anderson had told him about James H. Froman being security for Samuel C. Froman should have been excluded. It was no evidence of the knowledge of the bank. Johnston v. Shortridge, 93 Mo. 227; Hyde v. Larkin, 35 Mo. App. 365; Manhaiten Brass Co. v. Co., 37 Mo. App. 145. (3) Instructions 1 and 2 prayed by plaintiff should have been given, as they present the true theory of the case.
    
      Dougherty .& Dougherty, Lincoln db Emerson, and Hardwicke & Hardwicke for respondent.
    (1) The court will not reverse a case for error that does not materially affect the merits of the action. R. S. 1889, sec. 2308; Green v. St. Louis, 106 Mo. 574; Navev. Adams, 107 Mo. 414; Reardon v. Carter, 119 Mo. 572. (2) A judgment will not be reversed because of the admission of improper testimony, when that fact is proven by other evidence. Lane v. Lane, 113 Mo. 504; State ex rel. v. Railroad, 113 Mo. 297; Julian v. Conklins, 85 Mo. 202; Bradford v. Pearson, 12 Mo. 71. (3) Where one instruction is erroneous, but all the instructions, taken together, present the case fairly to the jury, it is not sufficient grounds for reversing the'judgment. Henshaw v. O’Bannon, 56 Mo. 289; Bradford v. Floyd, 80 Mo. 207; Cooper v. Johnson, 81 Mo. 483, and many other cases.
   Macfarlane, J.

Action against both defendants on two promissory notes, each of which was signed by S. C. Froman alone. Defendants were charged as partners doing business under the firm name of S. C. Proman. Two controlling issues were made by the pleadings: First, were defendants in fact partners; and, second, if not, did James H. Proman hold himself out to plaintiff as such partner.

Samuel C. Proman, a son of James H., was engaged in buying, selling and dealing in mules. The evidence tended to prove that James H. Proman had an interest in some of the mules bought and sold by his son and that he informed the officers of the bank that he was a partner. It appeared from the evidence that Samuel O. from time to time borrowed money from plaintiff bank. Por the money so borrowed, in a number of instances, notes signed by both the defendants were given the bank. These notes were finally taken up and a new note for about $4,500 signed by both defendants was given in place of them. In dealing with the bank the notes were generally signed by S. C. Proman alone.

Samuel H. Smith a witness for defendant was permitted to testify, over the objection of plaintiff, that one Henry. Anderson, a director of the bank, told him “that Proman was Sam’s security for about $4,500 in their bank.”

The court instructed the jury that “such statement by Anderson to Smith may be considered by the jury in so far as it bears on the question whether the bank had knowledge of the relation that James H. Proman sustained to Samuel C. Proman, as such knowledge, if any, on the part of the bank, may bear upon the ques • tion submitted in the fifth instruction whether- the bank was led to believe in the manner stated in the fifth instruction that James H. Proman was a partner, and extended credit and took notes sued on upon the faith of such partnership.”

The admission of this evidence and giving this instruction are the only errors assigned.

The evidence could have been offered for no other purpose than that of proving that plaintiff bank had knowledge that James H. Eroman occupied the relation of surety to his son Samuel C. Proman on the notes jointly signed by them, and not that of partner.

It was not shown that the director, whose declaration was proved, had any connection with the active business affairs of the bank whatever. In the circumstances the evidence was clearly inadmissible. The knowledge of a mere director, having no further authority than the position itself implies, can not be imputed to the corporation. The law is well settled in this state that ‘ ‘knowledge which comes to an officer of a corporation, through his private transactions, and beyond the range of his official duties is not notice to the corporation.” This is the rule, though the officer obtaining the knowledge was, at the time, the managing agent of the corporation. Benton v. Bank, 122 Mo. 339; Johnson v. Shortridge, 93 Mo. 227; Bank v. Lovitt, 114 Mo. 519.

Defendant insists that the error was a harmless one, and that the judgment should not be reversed for the admission of improper testimony when the fact in issue is established by other evidence.

The rule invoked has application only in cases in which appellate courts weigh the evidence, or in law cases where there is no conflict in the evidence on the particular issue. In case of a conflict in the evidence, in actions at law, the issues of fact must be determined by the tryers of the facts upon all the evidence, and the appellate court will not say what weight may have been given any particular part of it, or that any portion of it was without weight. It may be true that the preponderance of the evidence appears to support the theory that the bank had knowledge that, in other transactions with.it, James H. Fromanwas merely a surety of his son, but there was certainly substantial evidence tending to prove the contrary.

The evidence showing that a director of the bank had knowledge of the relation of these parties, in such transactions, may have been of convincing force to the jury that he had imparted his knowledge to the bank, or they may have inferred,- which the instruction virtually authorized them to do, that his knowledge could be taken as the knowledge of the bank. We can not therefore say that the admission of the evidence was not prejudicial.- Reversed and remanded.

All concur.  