Railway Co. v. Bank. urged in this case, were there pressed upon the attention of the courts. But, in each case, after the fullest consideration, and in opinions of unusual ability, they were rejected, and judgment given for the holders of the stock. In The Bank of Kentucky v. Schuylkill Bank, it was, however, directly for the plaintiff, the suit being for indemnity against its transfer agent, the Schuylkill Bank. The principle on which the decisions have generally gone, is the liability of a corporation for the acts of its agents, done within the scope of the agency conferred on them. There has been some controversy as to what is meant by "the scope of the agency," but it seems now well settled, that an act, though wilfully, fraudulently or negligently done by an agent, is within the scope of his agency and charges the principal as to innocent third persons, where the act done-the making of a contract, the disposition of property, the transfer of stock and the issuing of certificates therefor, are within the powers conferred on him, as an agent. The language of the court in Bridgeport Bank v. Railroad Company, supra, is applicable here; "it is said that Schuyler was the agent of the defendant only to do rightful acts, and when he did wrongful acts he ceased to be their agent. If he committed the wrongful act in the course of his employment, if the doing of like acts was within the scope of his employment, then he was their agent throughout, so far as third parties were concerned. If this convenient doctrine is sound, when can a principal be held liable for the wrongful act of his agent? No man appoints an agent to do a wrong, and if the moment an agent transcends his authority his relation to his principal Railway Co. v. Bank. ceases, when can a principal be held for a wrongful act? And yet it is well settled that he can be so held." See, also, Mechem on Agency, section 739; Story on Agency, section 652; Beach on Priv. Corp., section 488; Bank v. Blakesley, 42 Ohio St., 645, 652. In some of the cases importance has been attached to the negligence of the company, through its proper agents, in not supervising the conduct of its business, and, whereby, the particular agent has been enabled to perpetrate his frauds. But I apprehend that upon an accurate analysis of the company's liability in such cases, it will be found to rest on its liability for the acts of the agent who perpetrated the fraud. If the extent of his agency included the legitimate doing of an act of the kind done, then it will be liable though the act done was a fraud as to it and other persons. As to an innocent third person, affected by the agent's wrongful act, the negligence of the company in not discovering or preventing the fraud, may accentuate his right of recovery, but does not, as I apprehend, add to nor create that right. The plaintiff in error relies much upon the case of Moores v. Bank, 111 U. S., 156. We think it sufficient to distinguish that case from this, that the court there found that the plaintiff made the cashier of the bank, who committed the fraud, her agent to procure and have transferred to her the stock on which she proposed to loan him money, and that in doing so he acted for her, and not the bank; and, therefore, that she, and not the bank, was responsible for his wrongful act in filling up the certificate in fraud of the bank as well as of the plaintiff. If the court was right in its assumption as to the fact of agency, then the deci Railway Co. v. Bank. sion can have no application to this case, because there is no such feature in it. In the facts as found, there is no suggestion that any of the defendants employed Doughty to procure stock for them. If the court was wrong in its opinion as to the facts, then all that can be said of its decision, is, that it was upon a misconceived state of facts, and cannot apply here, although as a matter of fact the two cases should be found to be substantially alike in their facts. In the course of his opinion, the judge delivering it referred to a number of cases similar to this one, without any expression of disapproval, and placed the decision on the ground just stated. It may be further observed that the case does not seem to be in harmony with Allen v. Railroad Company, 150 Mass., 200, where, on a state of facts quite similar, the court held the treasurer who committed the frauds to be the agent of the company, and not of the party purchasing the stock. The case of Claflin v. Bank, 25 N. Y., 293, has been cited as sustaining the contention of the railroad company. But this case was distinguished from a case like the present one by the court delivering the opinion, as well as by the same court in the later case of Titus v. Turnpike Co., 61 N. Y., 243. In the former case the president of a bank, having a general authority to certify checks upon it as good, certified one in his own favor. This the court held was out of the ordinary course of business and contrary to business and legal rules and not within the scope of the agency, but was particular to distinguish it from the issue or transfer of a certificate of stock. The recent case of Knox v. Eden Musee Company, 148 N. Y.. 441, needs to be noticed. In that case Railway Co. v. Bank. it will be observed, that Jurgens, the wrongdoer, was not the agent of the company to issue or transfer stock. His employment was simply to cancel surrendered stock. Surrendered certificates were by him abstracted from the safe of the company and pledged as security for a loan. With respect to this the court said: "If it can be said that the direction of the president to Jurgens to cancel the certificates made him the agent of the company, for that purpose, it was an authority to destroy and not to use. His act in abstracting them from the safe and uttering them as valid certificates had no relation to the authority conferred. It was not an act of the same kind as that which he was authorized to perform. He had no apparent authority to issue them as genuine certificates, because he had no authority to issue certificates for any purpose." This broadly distinguishes the case from the one before us. No disposition is shown to modify the doctrine of the same court as announced in many previous cases, as to the liability of a corporation for the acts of the agents done within the scope of their employment, although not only negligently, but even fraudulently, done, and contrary to the purpose and instructions of the company. This clearly appears from the decision in James v. Manhattan Beach Co., supra, decided at the same term. The case draws the distinction between negotiable instruments and certificates of stock. The former, though lost or stolen, are valuable in the hands of innocent purchaser for value, whereas the latter are not; and the court treated the certificates abstracted by Jurgens as stolen from the company. The fact that the court in general term, on setting aside the finding made in special term, that Railway Co. v. Bank. inquiry at the office of the company would have disclosed the fraudulent character of the stock in question, proceeded to render the judgment the special term should have rendered instead of remanding the case for a new trial, was not error, for the reason that the finding was immaterial, as such care was not required under the circumstances; and its omission was not contributory negligence on the part of the defendants, or any of them, depriving them of a right to recover. If the statements contained in a certificate of stock, made by a company, cannot be relied on by a purchaser in the market, the market, without further inquiry, it may well be asked what real purpose does the certificate subserve? The language used by the court in Bridgeport Bank v. Railroad Co., 30 Conn., at 247, is pertinent to the question. "To require those who acted upon the certificate to ascertain, at their peril, from the books of the company, subject to the possibility of false entries by officers of the company in these books, whether the certificates were correct, is repugnant to the face of the certificate, to the purpose of it, and to the duties committed to the officers of the company. It would defeat the transferability of the stock." And, as observed in Willis v. Railroad Co., 13 Phila., p. 40, "Such an investigation is obviously superfluous where the officers of the corporation have done their duty, and will generally be unavailing when they are engaged in the perpetration of a fraud." And, in Lavey v. Bank, Taney's C. C. Dec., 310, 329, where it was held that purchasers of stock are not bound to look beyond the certificate, or to examine the books of the corporation, to ascertain the validity of the transfer, Taney, C. J., said: "A different rule |