violation of its duty. The bank might have refused to have paid out such money upon receiving a first mortgage lien therefor. It might have specifically informed the plaintiff that it would assume no duty nor obligation in connection with the loaning of any moneys of the plaintiff within its control or in its possession. It assumed, however, to perform its duty. Part of this duty was intra vires. The acts of its officer, the president, were ultra vires. Through the bank's permissive acts, its officer's acts were effectuated. The bank adopted such acts in performing its duty. The resulting situation was that the plaintiff was defrauded and deceived. Upon such analysis the conclusion follows that the defendant is not in a position to assert the defense of ultra vires in an action for the fraud and deceit practised, and that, furthermore, in connection with its own acts intra vires and through the fraud and deceit practised, it is liable for the damages that the plaintiff has sustained. The authorities well recognize the principle of law that a bank may not avail itself of the defense of ultra vires when fraud and deceit have been practised, even though it has received no benefit by reason thereof. Smith v. First Nat. Bk. of Casselton (C. C. A.) 268 Fed. 780; First Nat. Bk. v. Henry, supra, 159 Ala. 367, 49 So. 97, 101; First Nat. Bank v. Graham, supra; Stewart v. Wright, 147 Fed. 321, 77 C. C. A. 499; Gilbert v. Citizens' Nat. Bank, 61 Okla. 112, 160 Pac. 635, L. R. A. 1917A, 740, note 749; Anderson v. First Nat. Bank, 5 N. D. 451, 67 N. W. 821; First Nat: Bank v. Anderson, 172 U. S. 573, 19 Sup. Ct. 284, 43 L. ed. 558; Hindman v. First Nat. Bank, 98 Fed. 562, 39 C. C. A. 1, 48 L. R. A. 210; Id., 112 Fed. 931; Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 79 N. WV. 229, 74 Anı. St. Rep. 845; Nevada Bank v. Portland Nat. Bank (C. C.) 59 Fed. 338; Morse on Banks and Banking, § 727; 7 C. J. 835.
It is therefore ordered that judgment for the plaintiff be entered, upon the special verdict, pursuant to plaintiff's motion, and that the case be remanded for further proceedings in accordance with this opinion.
CHRISTIANSON and BIRDZELL, JJ., concur.
ROBINSON, C. J., dissents.
Grace, J. (specially concurring). The plaintiff for many years had transacted business with the bank. He reposed every confidence in it.
