112 Neb. 154 | Neb. | 1924
Sam Berkovitz, the plaintiff, brought this action'against Morton-Gregson Company, B. F. Kleeberger and the State Bank of Omaha, to recover payments made in excess of amounts due on accounts of Morton-Gregson Company against plaintiff for merchandise. Trial was' had to the court without a jury, resulting in a judgment for plaintiff as against Kleeberger, and in favor of defendants, MortonGregson Company and State Bank of Omaha. Plaintiff appeals. The case presented in this court involves only the liability of Morton-Gregson Company to plaintiff.
At the time of the transactions, out of which this controversy arises, plaintiff operated a retail meat-market in Omaha, Nebraska, and Morton-Gregson Company was engaged in the meat-packing industry at Nebraska City, Ne
In January, 1918, Kleeberger began the practice of altering the statements of accounts against the plaintiff by changing the footings or totals of the accounts, so as to show a much larger amount than was actually due. Plaintiff did not check up these statements, but accepted them as correct and drew his checks therefor. When Kleeberger began this practice, he did not deposit these checks to the credit of the Morton-Gregson Company in the Omaha National Bank, but indorsed on them the name of Morton-Gregson Company, per B. F. Kleeberger, and deposited them in his private account in the State Bank of Omaha. He would then draw a check upon his own account, payable to Morton-Gregson Company, for the amount actually due the company and deposit this check in the Omaha National Bank to the credit of Morton-Gregson Company. This practice continued for more than two years before it was dis
Kleeberger was called as a witness in behalf of defendants and admitted his fraudulent conduct, and that he had raised the footings of the statements without any authority from his principal. On cross-examination he claimed that he did not personally profit by his perfidy; that he used the excess collections received from plaintiff in adjusting claims of other customers of Morton-Gregson Company for shortage, spoilage, etc. Such claims, however, were not submitted to his principal for adjustment, and MortonGregson Company had no knowledge either of the excess collections at the time they were made, or that Kleeberger was adjusting claims of customers for alleged shortage, spoilage, etc.; nor had the company authorized him to make such adjustments.
Plaintiff contends that Morton-Gregson Company is liable to him for the excess collections upon two grounds: (1) That the acts of Kleeberger in presenting the altered and raised statements of account and in making the excess collections were within the apparent scope of his employment; and (2) that the company is estopped to deny liability, since the excess collections were used in discharging claims of other customers against it.
So far as the latter claim is concerned, we think it wholly devoid of merit. Kleeberger was not authorized to adjust any claims for shortage, spoilage, or any other kind of claim, against his principal. Whether these claims were just or unjust is not shown, and whether or not they would have been allowed, if they had been presented to MortonGregson Company, is a matter1 of mere speculation. Under the evidence, it does not appear that any valid or just claims against Morton-Gregson Company were paid and discharged by Kleeberger out of the excess collections. So far as appears, Morton-Gregson Company has not profited in any manner by the fraudulent acts of its agent. It has
Whether the acts of Kleeberger in altering and raising the statements of account and collecting excessive amounts, which he appropriated to his own use, can be said to be within the ostensible or apparent scope of his authority is a more serious question. While the statements of account were correctly made out at the home office and sent to Kleeberger for collection, the latter, when he presented the altered and raised statements of account to plaintiff, was certainly acting for and on behalf of his principal, and was within the line of his employment. So far as plaintiff was concerned, Kleeberger, to all appearances, stood as the agent and representative of Morton-Gregson Company, and was acting within the apparent scope of his authority. Morton-Gregson Company was without question a reputable business concern, and plaintiff, we think, was justified in the belief that its agent was reliable and trustworthy, and was warranted in the belief that the trusted agent of the Morton-Gregson Company was presenting accurate and true statements of his account. That he relied on the statements as being accurate and true was beyond question. We think he was justified in so acting. The fraud was perpetrated by Kleeberger while acting within the apparent scope of his authority.
In McFadden v. Lynn, 49 Ill. App. 166, it is held: “A principal holding out an agent as having authority to represent him, and thereby asserting or impliedly admitting that the agent is worthy of trust and confidence, is bound by all his acts within the apparent scope of the employment. Hence, the principal may be held for the fraudulent acts of the agent.”
In Commercial Union Assurance Co. v. State, 113 Ind. 331, it is held: “An insurance company must bear a loss sustained by the misconduct or disobedience of its agent, acting within the scope of his authority, rather than the assured, who has dealt fairly with him as such, without notice.”
In Adams v. Cole, 1 Daly (N. Y.) 147, it is said: “A general agent or clerk employed to make sales of goods and require payment therefor, who obtains payment of false bills by fraud or deceit, held, as acting within the scope of his employment, and his principal is liable for the amount thus obtained, especially where there is some evidence, however slight, that the agent paid the sum collected to his employer.”
Birkett v. Postal Telegraph-Cable Co., 107 App. "Div. (N. Y.) 115, is a case quite similar to the one under consideration. In that case plaintiff was accustomed to send telegrams through the Postal .Telegraph Company and at the end of each month to pay the agent of the company the amount due, as shown by the statements presented by the agent. The agent padded the statements and in the course of four years collected a large sum in excess of the true amount. The agent remitted the true amount to the company, as did Kleeberger in the case under consideration. The plaintiff in the Birkett case had a- list of the tariffs and charges of the company and might have, from an examination thereof, ascertained the amount which should have been paid, but he relied upon the accuracy of the statements as presented. The court held in that case that the agent was acting within the scope of his agency in receiving the money for the benefit of defendant, and that the defendant company was liable for the fraud perpetrated by its agent.
The case of Wilmerding v. Postal Telegraph-Cable Co., 118 App. Div. (N. Y.) 685, was a similar case. In that case the plaintiff, when desiring to send a telegram, called one of defendant’s messengers, who came and took the message and delivered it for transmission according to the
From a consideration of these authorities, we are constrained to hold that Kleeberger was acting within the apparent scope of his authority, and that his principal must be held responsible for his fraudulent conduct in raising and collecting excessive amounts from the plaintiff.
The defendant suggests that the State Bank of Omaha was not justified in cashing the checks when presented by Kleeberger, but we think that is not a matter that affects the right of plaintiff to recover in this case. If the bank was not justified in cashing the checks when presented by Kleeberger, Morton-Gregson Company may have a right of action against the bank for its negligence in cashing the checks. We are not called upon to decide that question in this case.
For the reasons given above, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Note — See Agency, 2 C. J. p. 495, sec. 115, p. 627, sec. 264.