62 A. 219 | N.H. | 1905
The fact that Moore made use of the money in question for his own purposes very soon after he withdrew it from the savings bank, and that in using it he pursued the course of his habit in the use of private funds, — depositing the money in the National Bank in the defendants' name and immediately checking it out for his private purposes, — was competent evidence upon the question of his intention at the time of the withdrawals. As this evidence has a tendency to support the court's finding, the plaintiff's exception to the finding must be overruled; and the finding must be accepted as true in considering the questions of law raised by the case.
The plaintiff is entitled to the relief sought (1) if the defendants now have possession of the money in question; or (2) if they *371
received it from Moore with notice of the trust and applied it to the payment of Moore's individual indebtedness to them; or (3) if they so received it and aided Moore in wrongfully diverting it from the plaintiff. Hill v. McIntire,
The first (1) ground of relief certainly does not exist. The fund was traced, not into the defendants' possession merely, but through their possession into the possession of other parties. Bank Commissioners v. Trust Co.,
Nor is the second (2) ground of relief established. The money was not paid and received on account of Moore's indebtedness to the defendants, but in the use by Moore of the defendants' deposit account with the Manchester National Bank as a "conduit" for, or means of, transmitting money in his private enterprises. If the defendants had any use whatever of the money, which is doubtful, it was only as an incident of the deposit, during the brief time while the money was passing through their deposit account with the National Bank, and with no intention on the part of Moore, or on their part so far as appears, to permanently convert the money to their uses. There was no such conversion of the money as will justify a court of equity in holding the defendants responsible for it as trustees for the plaintiff.
The question remains (3) whether the defendants received the money with notice of the trust, and aided Moore in wrongfully diverting it from the plaintiff. In considering this question, the matter of notice is of vital importance. The defendants took no part whatever in withdrawing the money from the savings bank. That was solely Moore's act; and being accompanied with the intention of using the money for his own purposes, constituted a complete conversion of it. He had already converted the money his own uses when he handed the certificates of deposit and the Boston draft, duly indorsed by him as guardian, to the defendants' assistant treasurer, with directions to deposit the same in the defendants' bank account. To consummate his fraudulent scheme, he deemed it convenient or advisable to use that account as a "conduit" through which to pass the money from himself to the parties to whom he might pay it. The only persons who took part in operating, so to speak, the "conduit" were Moore himself and the defendants' assistant treasurer. No other officer or servant of the defendants did anything whatever in respect to the deposit or withdrawal of the money. The entries upon the defendants' books relating to the money were in Moore's name. An officer or agent of the defendants, however attentive to his duties would not learn from an examination of the books that the plaintiff's *372
money was passing through their bank account, nor discover facts that would put him upon inquiry in that direction. The defendants' assistant treasurer received no direct information as to Moore's fraudulent intention. His only knowledge relating to the transactions was that the certificates of deposit and draft were payable to Moore as guardian or order, were indorsed by him in that capacity, and were deposited with the defendants as if they were his private funds. In considering these facts it must be borne in mind that the certificates and draft, unlike certificates of stock in corporations or promissory notes, were mere temporary representatives of value or credits. They did not bear interest. They were negotiable paper according to the commercial law. Dan. Neg. Inst., ss. 1652, 1703, 1705. In the ordinary course of business, such paper is used like currency to pass money from one person to another in business transactions — not to represent money more or less permanently invested with a view of producing income. Decisions relating to the transfer by trustees of stock certificates, promissory notes, and similar papers afford little aid in a case of this kind. Circumstances that would conclusively show that a transfer of certificates of stock, etc., was in violation of the trust might be entirely consistent with a lawful transfer of certificates of deposit and drafts. To a person not informed the circumstances by which Moore obtained these papers and of his intention in respect to their use, it would appear that he had right to negotiate them as he did in this case. Indeed, if they did not lawfully belong to him individually in consequence of his past, transactions in executing the trust, it would be his duty to use of them in paying outstanding claims against the trust estate, if any, or in making investments, or in some other way for the benefit of his ward. To hold them an unreasonable length of time would be a breach of trust, and would subject him to liability for any loss arising therefrom. By reason of his position as guardian and the form of the papers, he had absolute control of the manner in which they should be used. No license from the probate court or other source was necessary. He could transfer them directly to the persons to whom he intended ultimately to pay the money represented by them, or he could convert them into currency and use that, or he could deposit them in a bank in his name as guardian, or in his own name without further description, and draw checks against the deposit. If he transferred them directly to person in payment of his private indebtedness, or for some other consideration known to be for his private benefit, the form of the paper alone would be sufficient to put the person upon inquiry as to his right to so use the paper, and to charge him with knowledge of the facts he would thus learn. Such use is generally wholly *373
inconsistent with the guardian's rights, and is not made in the ordinary course of business. But the indorsee of such papers who receives them in the course of changing them into currency, in the course of distributing the credits they represent by means a temporary deposit and checks or orders drawn against the deposit, is not put upon inquiry by the mere form of the paper; for such use is consistent with the guardian's rights and duty. To charge such indorsee with responsibility for a misapplication of the funds, it must appear that he had knowledge of the contemplated misapplication, or of facts that would put him upon inquiry. Even a mingling of guardianship funds with private funds in a deposit account with a bank kept in the guardian's individual name is not, in itself, unlawful, though it be unwise. In such case the form of the paper will not impose upon the bank the duty seeing to it that the guardianship portion of the account is properly used. The ordinary presumption applies — that the guardian is acting in good faith, and will make a proper use of the money in drawing checks against the deposit. See Sherburne v. Goodwin,
The plaintiff further says that the defendants had notice of the fraud through Moore himself, their treasurer and general manager. It is true that a principal is ordinarily chargeable with the knowledge acquired by his agent in executing the agency, and is subject to the liabilities which such knowledge imposes. But there is a well established exception to this rule, by which the principal is not charged with the knowledge of his agent when the latter is engaged in "committing an independent, fraudulent act on his own account, and the facts to be imputed relate to this fraudulent act." Allen v. Railroad,
The application of the rule embodied in the exception to the peculiar circumstances of this case produces a just result — one that commands the approval of a court of equity. The defendants were not really the principals of Moore in respect to the deposits and withdrawals of the plaintiff's money in and from their bank account, they were his agents. The transactions were solely on his account and for his benefit. The defendants received no substantial benefit from them. The only authority conferred upon Moore by them which he used was the authority to use their bank account for his private purposes. In drawing checks, he fulfilled their obligation to himself. He was really acting himself. If he had drawn the checks in the course of a legal use of the funds, the plaintiff would have had no cause for complaint. As has been seen, the defendants did not owe the plaintiff the duty of looking after the appropriation of her money, even if they knew it was temporarily in their possession. The presumption was that he would lawfully appropriate it. There is no evidence outside of that relating to Moore's acts and intention in these particular transactions which tends to show that they had reason to anticipate he would attempt to use the authority they conferred upon him in misappropriating trust funds. They were, at most, *376 only unwitting agents of Moore in the transactions. The mere fact that he acted for the defendants in fulfilling their obligation to him does not in justice and equity afford a sufficient reason for charging them with knowledge and making them responsible equally with himself for a fraud that he was committing outside the scope of the authority he exercised in their behalf.
Still another position taken by the plaintiff is that she might maintain an action against the Manchester National Bank, on the ground that the form of the certificates of deposit and draft was notice to the bank that the papers represented guardianship funds, to which the defendants could not give a valid title, that if the plaintiff pursued that course, the bank would have a right of action against the defendants upon their indorsements of the paper, and that equity will enable the plaintiff to proceed directly against the defendants in the interest of the bank as well as herself, thereby avoiding the necessity of two actions. It follows from what has already been said that this position is not tenable, even if equity would have jurisdiction of the subject-matter in case the bank acquired no valid title to the paper — a point that has not been considered.
The plaintiff is not entitled to the relief sought, and the bill should be dismissed.
Exception overruled: case discharged.
BINGHAM, J., did not sit: the others concurred.