133 Mo. App. 705 | Mo. Ct. App. | 1908
The plaintiff is an incorporated bank under the laws of this State, located in Greenfield, Dade county. On the 27th day of July, 1905, one H. C. Woolf was elected its cashier and entered upon the discharge of his duties as such on the 12th day of August following. Prior thereto, he applied to the defendant to make his bond to the plaintiff in the sum of $10,000. The application was in writing and signed by Woolf and E. H. Daughtry, a director of the bank. The defendant executed the bond applied for in consideration of a premium of thirty dollars paid by the bank and the same was delivered to its president, whereupon Woolf at once assumed the duties of cashier.
The principal condition of the bond reads as follows: “Now, therefore, This Bond Witnesseth, That for the consideration of the premises, the company shall during the term above mentioned, or any subsequent or renewal of such term, and subject to the conditions and provisions herein contained, at the expiration of three months next, after proof satisfactory to the company, as hereinafter mentioned, make good and reimburse to the said employer, such pecuniary loss as may be sustained by the employer by reason of the fraud or dishonesty of the said employee in connection with the duties of his office or position, amounting to embezzlement or larceny. . . .”
Prior to the time that Woolf became cashier, one
It was shown that Woolf counseled and advised Myers in relation to these partnership affairs.- On October 9,1905, Myers made a draft for $1,500’ on B. W. Bedfern & Co., St. Louis, which was deposited to his credit and upon which he was allowed to check before any returns were received from the draft. On October 17th, Myers drew another draft on the St. Louis concern for $1,200, which was also deposited to his credit and upon which he was allowed to check before any returns from the same had been received. Both these drafts were endorsed, “No protest.” The second draft was accepted by the draAvee on October 19, 1905. Both were returned unpaid. The first was returned to and received by the bank on October 20, 1905, and the second on October 28, 1905. On the return of the first draft for $1,500, Woolf, upon the assurance of Myers that there aatis some mistake about the matter, alloAA'-ed Myers on October 26th to draw- and deposit another draft on the same concern for $1,500 and canceled the first draft, crediting the same by the second one for that amount. On October 28th, Woolf allOAved Myers to draw another draft for $1,200 to take the place of the former one for an equal amount, marking the first paid and crediting the same by the second, and allowed Myers to check upon the same. These last two drafts
It is contended by defendant that, although the evidence may have established the fact that Woolf had been guilty of fraud in the transactions detailed, it did not, in law, constitute embezzlement or larceny. Conceding that Woolf was guilty of fraud,, it is to be determined whether that fact of itself rendered defendant liable by the terms of the bond. The language is that the company is to “make good and reimburse to the employer, such pecuniary loss as may be sustained by the employer by reason of fraud or dishonesty of the said employee in connection with the duties of his position, amounting to embezzlement or larceny . . .” We are of the opinion that the fraud or dishonesty shown must have amounted to embezzlement or larceny in order to have brought the case within the meaning of the language used. Mere fraud or dishonesty alone, not amounting to crime, will not answer the purpose of the obligation. In Reed v. Fidelity & Casualty Co., 42 Atl. (Pa.) 294, “The bond insured Reed’s sons to the extent of $2,000 against any pecuniary loss they might suffer by reason of the fraudulent or dishonest acts of Leiding, amounting to embezzlement or larceny.” It was held that the insurance was only against the fraudulent and dishonest acts of the employee amounting to embezzlement or larceny. And the holding is similar in Guaranty Co. v. Bank, 100 Fed. 559.
On the other side, we are referred to certain authorities to which we will call attention. In a case wherein plaintiff contracted with a printing company to print-certain wrappers on plates and with paper to be fur
So considering the interpretation to be put upon the meaning of the language of the instrument, the question remaining is, whether the evidence tended to show that Woolf had been guilty of such fraud or dishonesty
The defendant has presented other grounds for reversal, but, as what has already been said disposes of the case, there is no necessity for their consideration.
Cause reversed.