272 Mo. 681 | Mo. | 1917
This is a suit to recover on a bond of respondent, A. C. Tindle, for losses to the plaintiff bank on account of the embezzlement of . its funds by Tindle as its cashier. The plaintiff trust company sues as assignee for the purpose of liquidating the assets of the bank of which the bond is a part. The defendants, other than Tindle, are the sureties on his bond.
The petition states the corporate capacity of the plaintiff trust company, its rights, powers and privileges as such, aud that it acquired for value received by contracts as assignee, all assets and claims of the Pemiscot County Bank for the purpose of liquidating the bank’s unsettled business; that by virtue of said assignment it became a trustee of an express trust for said bank and as assignee in connection with said bank it brings this suit.
The corporate character of the plaintiff bank is alleged; that it did a banking business from the date of its organization until June, 1913, when it ceased to be an active concern, at which time it assigned its assets to the the plaintiff trust company for the purpose above stated; that in April, 1912, defendant Tindle was elected and employed as cashier of said bank, and on said date entered into a bond to said bank with the other defendants named herein, as sureties, for his faithful performance of the duties of cashier. The bond is
“The condition of the above obligation is, that whereas said A. C. Tindle, has been duly appointed by the board of directors of said Pemiscot County Bank, as cashier of said bank;
“Now, Therefore, if the said A. C. Tindle, shall well and faithfully perform all duties of the office of cashier of the said Pemiscot County Bank, respectfully, during the time for which he has been elected or appointed, the said above named and undersigned sureties hereby agree to hold the said Pemiscot County Bank harmless for any loss occasioned by any act of such officer, until ¿.11 his accounts with the said bank shall have been fully settled and satisfied. It hereby being expressly understood and agreed, that the said sureties shall not be liable for any act of the said employee or employees resulting in loss to the said, employer, whose act may have been committed prior to twelve o’clock noon on the 1st day of February, 1912, and subsequent to twelve o’clock noon of the first day of February, 1913.”
The petition further avers that Tindle, as cashier of said bank, aided and assisted by Thos. B. Ward and L. A. Ferguson, as assistant cashiers, colluded and worked together with the fraudulent design of embez-, zlirig and misappropriating the money and funds of said bank. The course pursued by these parties to effect their purpose and plan to embezzle and misappropriate said money and funds; is set forth, and it is alleged that said bank was unlawfully thus deprived' by Tindle of large sums of money; that it was the duty of Tindle as cashier to see that the books of said bank were correctly kept to prevent those assisting lfim or
Defendants demurred to this, petition, assigning the following reasons therefor:
“1. Because said petition shows on its face that the plaintiff has no legal capacity to bring this suit.
“2. Because said petition shows on its face that said plaintiff is not the party in interest herein, and the suit cannot be maintained in the name of the plaintiff Citizens Trust Company.
“3. Because said petition fails to state facts sufficient to constitute any cause of action herein.
“4. Because said petition' shows on its face that the plaintiff has no canse of action against the defendants.
*692 “5. Because said petition is so indefinite and uncertain as not to apprise the defendants of their alleged • cause of action or charge against the defendants.
“6. Because said amended petition shows on its face that the many divers and various things set out and enumerated therein did not constitute any breach of- the bond and said petition fails to show any connection of any of the alleged many and divers matters and things set out in said petition are in any way connected or related to these defendants herein, or that said matters therein related and set out constituted any cause of action against the defendants herein.
■ . “7. And that said petition on its face shows, as to these defendants as sureties on the alleged bond, that all matters and things related in said petition did not constitute any breach of the bond set out in plaintiff’s petition, and did not constitute any cause of action or ground of complaint against these defendants. ■
“8. And that said amended petition shows on its face that there is a misjoinder, of causes of action of many and divers and various and different alleged wrongful transactions on the part of the principal in the bond sued upon, A. C. Tindle, but which said charges do not constitute any violation of the' bond and are alleged wrongful acts not properly joined in this action and do not constitute any cause of action against these defendants.
“9. And there is a misjoinder of parties plaintiff therein.”
The demurrer was sustained; and the plaintiff declining to plead further, final judgment was entered for' defendant from which' this appeal is taken.
II. It is further contended that the assignment was unauthorized and hence the trust company could not base a right of action thereon. Section 1084, Revised Statutes 1909, is cited in support of this contention. It is as follows: “It shall be unlawful in this State for a bank, private banker, savings and safe deposit company or trust company receiving deposits to make a voluntary general assignment of its business and affairs. In case it shall find itself to be in a failing condition it shall immediately place itself in the hands' of the Bank Commissioner. Any deed of voluntary general assignment executed by any such bank, private banker, savings and safe deposit company or-trust company shall be null and void, and in case the officers or directors of any such institution shall endeavor to make any voluntary general assignment, of its assets,- the Bank Commissioner shall immediately take possession thereof and proceed, as provided in the case of insolvent banks in this State for the appointment of a receiver by court. All transfers of the notes, bonds, bills of exchange, or other evidence .of debt owing to any bank, private banker, savings and safe deposit company or trust company, or of deposits to its credit; all assignments of mortgages, sureties on real estate or of judgments or decrees in its favor; all deposits of
Prom the allegation of the petition therefore in regard to the transfer of this bond to the trust company as a liquidating agency the presumption is permissible that circumstances existed which, in accordance with the views we have expressed, authorized the bank,, with the consent of all its creditors to proceed with its own liquidation through the agency of the trust company. If this be denied and the respondents should claim that they have the right to assert that the transfer was unlawful, it devolved upon them to plead it by answer as a defense, which has not been done. The. judgment of the circuit court upon the demurrer cannot therefore be sustained on the ground that the trust company is shown upon the face of the petition to be an improper party on account of the transfer of the bond sued on being void.
III. The vital .question in this case is, whether under the conditions- of this bond the sureties thereon are liable for the thefts of the bank’s funds by the principal, as disclosed in the petition. This bond constitutes a contract. As such it is generally subject to the rules of construction applicable to other contracts. One of the most important of these is that if the contract, be
The necessity and the wisdom of a bond of this character having been shown, its failure to conform to the statutory requirements will not affect its validity for the purpose for which it was made. It was voluntarily entered into, and its conditions may be performed without a breach of the law. The sureties are therefore bound by the terms of their agreement, as recited in the bond, except as to such parts as may be illegal when their responsibility will continue as to the residue. [Daniels v. Tearney, 102 U. S. l. c. 420; Kountze v. Hotel Co., 107 U. S. l. c. 396; Liggett v. Humphrey, 21 How. (U. S.) l. c. 69.]
This reasoning is based upon the general rules of construction applicable alike to all obligations. When, however, the rights of sureties are involved, the doc
This bond speaks for itself. Thus speaking the liability of the sureties thereon is limited to its exact words. If these will not render them liable, nothing-can. There is no equity against sureties and courts will riot so construe a bond as to create a liability at variance with its letter. Such a construction would be necessary to fix the liability of the sureties here, under the allegations of this petition. We therefore hold that it does not state a cause of action, from which it follows that the judgment of the trial court should be affirmed. It is so ordered.