# Hume v. Commercial Bank > Tennessee Supreme Court · September 15, 1882 · 77 Tenn. 728 URL: https://www.frixlaw.com/law-library/cases/8297232 ## Case - **Full name:** William G. Hume v. Commercial Bank - **Court:** Tennessee Supreme Court - **Decided:** September 15, 1882 - **Citations:** 77 Tenn. 728 - **Precedential status:** Published - **Opinion:** Dissent by Eeeeman - **Judges:** Cooper, Deaderick, Eeeeman - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8297232 ## Opinion text EeeeMAN, J., delivered the following dissenting opinion: I concur in the majority opinion, so far as it holds that the- defendants in this case cannot be held as' stockholders. I do not think the proof sustains the contention of complainants on this question. But on the point of their being directors, as to all parties dealing with the bank, and responsible, to the full extent that such a relation to the bank involves, I am unable to- agree with the conclusion reached. I am of the opinion that they have effectually es-topped themselves, by their conduct, from saying they are not directors, so far as all persons dealing with the bank are concerned. The advertisement in the Knoxville papers, when the nature and purpose of such advertisement is considered, seems to me conclusive on this question. It was not a mere newspaper paragraph, the work of the editor, giving his information on the subject; but it is more, it is an official notice by the bank of its organization, and its official managers. It notified the *753 community that a new bank had been started in the city of Knoxville, and the parties named hud undertaken to perform the duties appertaining to the positions they were announced as holding. It was an advertisement, as we have said, and not a mere newspaper notice, and therefore was intended to call the attention of "the community to the fact stated in it. It was not notice of a private organization for private ends alone, but of a business institution, which by the nature of that business, would depend upon the public confidence for the success of the venture. It was a bank, which was expected to receive the money of all who might trust it — on deposit — and use it in their own business, and be ready to return it when called on. It is a business eminently based on confidence for its success — in fact, impossible to be conducted successfully without this confidence on the part of the public. The main elements of this confidence, as I understand it, arc first the capital stock, and second, the skill and integrity with which that capital shall be used by the parties who shall have the direction and control of that capital, as well as the entire conduct of the bank. The directory, the parties who are to manage the institution, is of more importance to the success arid safety of (he bank, and the security of all parties concerned and dealing with the bank, than even the amount of.the capital stock, as mismanagement, and bad use of this, by men not qualified for, or unfaithful to the trust, will soon dissipate the capital stock of any ordinary institution, as experience has abundantly shown. *754 This being so, it seems to me, that' when parties silently sit by, and permit the community to be notified for years, that they have assumed the management and direction of the affairs of a bank, and that until the bank has been rendered totally insolvent, that they shall not then be permitted, either to deny the fact to be as stated, or escape by any technicality from the responsibility justly attaching to the position so announced to the world as held by them. How do they escape this responsibility in this case? As I understand it, by a simple disclaimer and denial, when the bank is found to be insolvent, and there is danger imminent in the positions which have been announced for them by the bank. Ought not years of fairly implied assent to the opposite, inviting the public to trust the bank on the faith of their names, as directors, to be of greater force than such disclaimer, made under such circumstances? I am compelled to think, it was then too late to escape responsibility by such a disclaimer. I cannot see but that these parties must be held as. having assented to the advertisement, as emphatically as if they had authorized the advertisement originally to. have been made. It is a fact, and must be held that the use of the names of these ■ parties by the bank, was intended as a means of obtaining public confidence, else why publicly announce through the. newspapers the fact at all. If untrue, and unauthorized, such unauthorized use of the names of these parties, was a fraud on them,, by the parties so using them. *755 But are they not parties to this fraud on the public — unintentionally it may be — -but still certainly parties by all the rules by which we judge human, conduct, and equally responsible to all who, in pursuance of the invitation given by the advertisement, give their confidence to the bank? They allow the bank to notify the public that we will manage the funds entrusted to this institution. You can, therefore, trust the bank — if you have confidence in us — for such a business. Having permitted the bank to use their names as long as the- bank could use them successfully, but as soon as responsibility comes — the bank breaks, and danger threatens — it is promptly replied, that advertisement was only a snare and a sham — the bank has caught you by it — but you ought not to have believed the advertisement — it was false from the first —we knew it, but it was not our business to correct it — it was yours to find out how the facts were. But does this accord with either sound law, or a