
    WARREN COUNTY.
    January Term, 1883,
    No. 274.
    May 24, 1883.
    Bates v. Short.
    Where there was evidence that an agent was authorized to indorse his principal’s name upon a note in renewal of an old note which had been protested, and that, at the time the authority was given, he told his principal that he “ thought it would be about $410,” and he then indorsed the principal’s name upon the renewal note for this amount; Held, In a suit by the bank which had discounted the note against the principal, that the note was properly admitted in evidence, and that the plaintiff could recover the amount actually due, although the prior note with interest and costs of protest did not exceed the sum of $408 50.
    Before Mercur, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ. ; Pakson, J., absent.
    Error to the Common Pleas of Warren County.
    
    
      Assumpsit by William H. Shortt, president, in trust for tlie Sugar Grove Savings Bank against William Bates upon a promissory note for $410, 'alleged to have been indorsed by the said William Bates.
    The facts, as they apjjeared at the trial before McDermitt, P. J., were as follows :
    In 1878, W. P. Wynn got discounted at the Sugar Grove Savings Bank a note for $400, made by himself and having the name of William Bates indorsed upon it. This note became due on January 25, 1879, and was protested. On January 28, Wynn presented the note in suit for $410, payable to the order of William Bates, dated January 26, and having the name of Bates indorsed upon it. This was also discounted by the bank for Wynn’s account, and the old note was delivered up to him. The bank had no knowledge that the indorsement was not in Bates’ handwriting.
    
      W. P. Wynn testified, in reference to the second note, as follows:
    “ I wrote William Bates’ name on the back of the note. I wrote the note on the 28th of January, 1879. The night of the 27th I asked him if I could use his name, and he said I could. I told him I would draw up the note and take it to the bank. He says, ‘All right, put my name on the back of it.’ ... I first met Mr. Bates in front of James Letts’ store. He commenced about tbe note. He said he bad got a letter of protest from tbe Sugar Grove Bank. • Tbis was about tbe $400 note that he bad indorsed for me on the Sugar Grove Bank before this one. This last note was a renewal of that. He said t hat he bad got a notice of protest and wanted to know i E I thought I could pay tbe note, and I told him that I could not; that I could not raise tbe money to pay it. He says then that I would have to get it renewed, and be told me to put bis name on tbe back. We were in front of my bouse when be told me that. ... I drew up tbe note tbe next morning and took it to tbe bank, and got it discounted.”
    A witness present at tbe conversation between Wynn and ’ Bates testified that be beard Bates say ‘ ‘ that be would have to get it renewed.”
    
      G. M. SJiortt, cashier of tbe Sugar Grove bank, testified that the interest on tbe $400 note, at ten per cent., would be $6 75.
    
      W. P. Wynn being recalled: “I believe I told him (Bates) that I would have to make tbe note $410 . . .
    I told him that I bad no money to pay tbe interest, and there would be some costs of protest. I told him I thought it would be about $410.”
    Bates denied that be had authorized Wynn to sign tbe note in suit or any other one.
    Plaintiff offered tbe note in evidence. Objected to for tbe reason that it is proven on tbe part of tbe plaintiff that tbe indorsement was not written by defendant, and tbe authority to indorse it was to indorse a note for $400 including the interest; tbis note is for $410 and therefore void. Objection overruled under exception. (First assignment of error.)
    Tbe plaintiff submitted tbe following point: ‘ That if the jury believe that W. P. Wynn was authorized by Bates to get tbe protested note at the Sugar Grove bank, on which be was indorser, renewed, by indorsing bis name on a note for that purpose, it was an authority to indorse such a note as by the rule and custom of tbe bank was required and would be accepted in renewal of tbe over-due note.
    ' Answer.- — Tbis point is affirmed, with these qualifications : that tbe defendant would only be liable on tbe note so given for tbe actual amount due tbe bank, with legal interest thereon, and also tbe costs of protest on tbe former note, if it was so indorsed by him. But if the bank, the plaintiff, knowingly took the note in suit for a greater amount than was due thereon, and so took it with the fraudulent intent of collecting more money on it than the defendant owed it, then your verdict should be for the defendant. (Second assignment of error.)
    The defendant submitted the following point, inter alia: That even if the jury believe, from the evidence, that Bates authorized Wynn to renew the $400 note, with interest, and indorse his (Bates) name upon the back thereof as indorser the same as before, and that Wynn drew a note for a larger amount and for other purposes than he was authorized by Bates to do, he exceeded his authority as a special agent of Bates, his act would not be binding upon his principal, Bates, and the plaintiff cannot therefore recover.
    
      Answer. — This point answered negatively, as the principle involved in it is explained in onr answer to the plaintiff’s only point. (Third assignment of error.)
    The Court charged, inter alia, as follows:
    “ It is alleged on the part of the defendant that the note is given for an amount greater than ought to have been by some small amount. If this was a mistake made in calculating the amount of the note, it would not prevent the bank recovering all that was due to them. But if the bank added an amount or accepted a note in amount greater than -was due them, and with fraudulent intent collected more money from the indorser, Bates, than he owed the bank, it would vitiate the whole and the plaintiff, could not recover.” (Fourth assignment of error).
    Mat 4, 1882. — Verdict for plaintiff for $484 35, upon wrhich judgment was afterwards entered. Thae defendant thereupon took this writ of error.
    
      D. I. Ball and Olías. H. Noyes for plaintiff in error.
    An agent, constituted for a particular purpose and under a limited power, cannot bind his principal if he exceeds that power. The special authority must be strictly pursued : 2 Kent. Com., 620 ; Batty «. Carswell, 2 John., 48 ; Noe ¶. Prideaux, 10 East, 158 ; Strohecker «. the Bank, 8 Watts, 188.
    The evidence on the part of the plaintiff went no farther than this : that Bates authorized Wynn to renew a note for $400 by indorsing his name to a new note for the amount of the old one, including the interest for sixty days, which would be four dollars.
    If, however, we admit that there would be implied authority to include usury at the rate charged by the bank, which the cashier testified was ten per cent., and for sixty-three days amounting to $6 75 and the fees for the protest of the old note, which were $1 75, the utmost amount of the note which Bates authorized Wynn to indorse was $408 50. The note offered in evidence was for $410. There was, therefore, no authority shown from Bates to Wynn to indorse the particular note in suit.
    
      Johnson, Lindsey & Parmlee for defendant in error.
    Wynn’s evidence showed ample authority to indorse Bates’ name for a note for $410. The question of the amount which the bank could recover was an independent and separate question from the question of authority given to Wynn to indorse the note. These questions were plainly and” fairly submitted to the jury, and it is not claimed that the jury found for the plaintiff any more than the amount of the old note with legal interest and protest fees added.
    October 1, 1883.
   — Per Curiam :

We have carefully examined the evidence and considered the several specifications of error. The law is correctly declared and the evidence was sufficient to justify its submission to the jury. There was no error in admitting the note in evidence. There was some evidence of authority in the agent to make it for the sum therein specified.

Judgment affirmed.  