55 Ga. App. 28 | Ga. Ct. App. | 1936
Lead Opinion
The petition alleges that Easterling was cashier of the Peoples Bank and was later appointed administrator of the estate of Mrs. Waters; that the American Surety Company en
The bank alleges further that the surety company waived the stipulations in the bond that loss be discovered within fifteen months following the termination of employment, that notice of the same be given the company within ten days after the discovery of said loss,' and that suit be filed within twelve months thereafter; and that the surety company was therefore estopped from urging these provisions in a suit brought on the bond to recover for a loss thereunder. The surety company demurred to the petition of the bank as amended, and for grounds of demurrer said that it is vitally defective in that the money which was being stolen or misused was not the bank’s money, hence there can be no liability under the terms of the bond. And that Easterling may have been guilty of larceny and embezzlement, but from start to finish in plaintiff’s petition, it appears that it was the estate which was defrauded and not the bank. The surety company further demurs to the bank’s petition and says that the bank absolutely failed to comply with the provision of the bond that notice be given and claim filed within a specified time. The court overruled the surety company’s demurrer and it excepted.
“Money deposited in banks is not left in trust of the officers or agents, but is left as a trust with the bank, and becomes the property of the bank, with the only obligation, ordinarily, that its equivalent in like bind be returned to the depositor on demand.
If the transfer of the estate’s property to the bank was intended as a payment on-account of Easterling’s overdraft in the bank, the plaintiff bank would not be entitled to hold the same on- the ground that it would be chargeable with Easterling’s knowledge of the source from which the funds came. The transfer of the funds can not be considered as a payment by Easterling to the bank because it was not so understood or intended by either party. There was no accounting between them. Nobody but Easterling could possibly have intended that the transaction should amount to a payment, and'his intention, if entertained, was ineffectual because of his fraud. When Easterling undertook in this manner to make a payment by secretly transferring the property of the estate to his overdrawn account in the bank, the act can not take effect as a payment because it was not received as such by any person acting on behalf of the bank. There was not even a semblance of an accounting. And, under these circumstances, if the bank should adopt the intention to make it a payment, it must also adopt the fraud. It can not adopt so much of Easterling’s act as was beneficial and reject the rest. Atlantic Mills v. Indian Orchard Mills, supra. Therefore section 4 of the bond which reads as follows: “That the surety shall not be liable hereunder for any default, the proceeds of which shall have been applied to the payment to the employer of a pre-existing debt,” is not applicable.
Another ground of the demurrer contends that the bank has
Judgment affirmed.
Rehearing
This case being here on account of the overruling of demurrers (on demurrers the allegations are considered as true), the language used in the opinion, “when he took the funds from his individual account, he thereby kept the bank from deriving any benefit from his former act,” was used in the sense that if, as alleged in the petition, he took the funds from the individual account, he would thereby have kept the bank from deriving any benefit from his former account. Having arrived at the conclusion as between Easterling, the cashier, and the bank, that under the alleged scheme adopted by Easterling of taking the funds from the account of the estate of Mrs. Waters, of which estate he was the administrator, and placing them in his overdrawn individual account, both accounts being in the bank of which he was cashier, and then taking them from his individual account, the petition did not allege a valid payment to the bank of a pre-existing debt, we do not think that it appeared from the allegations of the petition that there was a violation of the provisions of the bond “that the surety shall not be liable hereunder for any default the proceeds of which shall have been applied to the payment to the employer of a pre-existing debt.” Bearing in mind that the moment the general deposit is made, the credit of the banker is substituted for the money and that the title to the money passes to the bank, we are of the opinion that if the allegations be true “that the funds were taken by the said R. D. Easterling from his account in the plaintiff’s bank as administrator of the estate of Mrs. J. B. Waters and placed in his individual account, and then taken by him from said individual account, and that the plaintiff derived no benefit therefrom,” then the facts alleged would authorize a conclusion or finding that the bank sustained a pecuniary loss “by the act of larceny or embezzlement” on the part of Easterling, and under the provisions of the bond the surety company which indemnified the bank for such pecuniary loss as the bank “shall have sustained of money or of other personal property (including- that for which the employer is responsible) by any act or acts of larceny or embezzlement on the part of the employee,” the bank could recover on the bond for such loss. We can not agree with the plaintiff in error that it appears from the plaintiff’s petition that the estate was defrauded, and not the bank; nor do we think that it appears from the peti