Ellsbury loan. We are of the opinion, as heretofore stated, that the jury were warranted in finding that the bank did receive the proceeds of such Ellsbury loan, and that it is not in a position to assert that it did not receive such proceeds when it was authorized so to do and when it was understood from the correspondence had with the plaintiff that it was its duty so to do. Again, in receiving such proceeds of the Ellsbury loan the bank was acting intra vires. Thereupon the plaintiff had the sum of $2,000, concerning which it was the duty of the defendant bank to account to the plaintiff therefor. The interest accrued upon the Ellsbury loan had been paid to the plaintiff by the defendant. Upon representations made by the defendant's president concerning the disposition of this $2,000, the plaintiff, in legal effect, authorized the defendant bank to pay out this money upon a first mortgage lien upon real estate. Again, it may be said that the defendant bank in paying out such money pursuant to plaintiff's legal authorization was acting intra vires. Kennedy v. State Bank, 22 N. D. 69, 132 N. W. 657; Wagner v. First Nat. Bank of Casselton, 173 N. W. 814; First Nat. Bank v. Henry, 159 Ala. 367, 49 South, 97; Emmerling v. First Nat. Bk. of Pembina, N. D., 97 Fed. 739, 38 C. C. A. 399; Citizens' Nat. Bank v. Davisson, 229 U. S. 212, 33 Sup. Ct. 625, 57 L. ed. 1153, Ann. Cas. 1915A, 272. See Minn. Ins. Co. v. Tagus State Bank, 34 N. D. 566, 158 N. W. 1063, L. R. A. 1917A, 519.
Thereupon Kittel, the president through his position as such, fraudulently and deceitfully represented to the plaintiff concerning the prospective first mortgage lien, to be given to the plaintiff for the proceeds of such Ellsbury loan. He may have acted personally for his own benefit for the benefit of other concerns in which he was interested. He may have deceived the other bank officers and fraudulently imposed upon them. He may have been the person that received whatever benefit would accrue in the transaction from the making of such mortgage. His acts, so far as they made such representations and so far as they may have pretended that the bank was making the loan and was receiving or might receive the benefit therefrom, might have been ultra vires and beyond his authority and beyond the authority of the bank, so far as it concerned the brokerage transaction. The bank, however, still had a duty to perform from its course of conduct with the plaintiff through the years and in connection with the proceeds of this Ellsbury loan. Through its president it appropriated the proceeds of this loan and placed the same in a valueless mortgage, contrary to the legal effect of its instructions and in
