63 Neb. 1 | Neb. | 1901
This is a suit brought by the receiver of the State Bank' of Milligan against the assistant cashier of said bank and the sureties on his bond.
The material allegations of the petition are: That on the 28th day of February, 1894, Frank Fiala, a minor, was appointed assistant cashier of the State Bank of Milligan and that he executed and delivered to the said bank a bond, in the penal sum of $5,000, containing the following condition: “Whereas, On the 1st day of February, 1894, the aforesaid Frank Fiala was appointed assistant cashier of the State Bank of Milligan, at Milligan, Nebraska, and
In the petition filed in this court by the defendants error is alleged against the sufficiency of the petition to sustain the judgment and against the sufficiency of the evidence to sustain the judgment, and against the action of the trial court in giving and refusing instructions. In determining the question of the sufficiency of the petition against the sureties on the bond, we must first examine the conditions of the bond on which the breach is alleged and ascertain what their liabilities are under these conditions. The conditions, briefly stated, are that the said Frank Fiala shall honestly, faithfully and efficiently discharge the duties of his position as assistant cashier in said bank. A condition
The next question to be determined is, What duty the assistant cashier owed to the directors of the bank with reference to furnishing them information of the misconduct of his superior officer, the cashier? Under the allegations of the petition, the assistant cashier performed the duties in the bank which generally appertain to the office of bookkeeper and teller; and, consequently, the question as to his liability for the fraudulent acts of his superior officer depends on whether he owes any duty to the bank beyond the ordinary duty of obeying the cashier. In the case of Hobart v. Dovell, 38 N. J. Eq., 553, 566, this question was before the court in a case in which the teller of the bank was sought to be held civilly liable for the embezzlements of the cashier. Dixon, J., in rendering the opinion, says: “For knowingly assisting in such an abstraction, the teller would be as responsible to the bank as if he had spent the money himself. He was an officer of the bank, having certain prescribed duties, for the faithful performance of which he was bound directly to the corporation. No orders of the cashier could exculpate him in the breach of those obligations. Within the scope of the cashier’s authority, and so long as he was apparently acting on behalf of the corporation, the cashier’s directions might control the teller, and the latter might not to be required to look beneath the surface of his superior’s acts. But when he was led to believe that the cashier was violating his own duty to the bank, and was taking the bank’s funds for his own ends, irregularly, and without authority from the directors, the teller had no more right to aid in or connive at such misappropriation than if it were being perpetrated by a stranger. The same prin
The next question urged is that there was no delivery of the bond, nor any acceptance of it by the ‘directors of the bank. The undisputed facts with reference to the delivery of the bond are that after the bond was prepared and signed, Piala, the assistant cashier, delivered it to Zirhut, the cashier of the bank, and that Zirhut kept the bond and the bank officers found it among his papers after he had absconded. We think that the fact that the bond was delivered to the cashier of the bank, who was one of the directors, and that Fiala entered upon the duties of his office under such bond, and that such bond was retained by one of the directors of the bank, is sufficient to establish the acceptance of the bond, though no acceptance is shown by the minutes of the board. Pryse v. Farmers’ Bank, 33 S. W. Rep. [Ky.], 532; Bank of United States v. Danbridge, 12 Wheat. [U. S.], 61; Dedham Bank v. Checkering, 3 Pick. [Mass.], 335.
The evidence with reference to the taking of the $1,000 from the bank by Zirhut on October 25, 1891, is that this money was procured by a draft sighed by Zirhut as cashier of the bank and drawn on Tootle, Lemon & Oo., of St. Joseph, Mo., in favor of McLain Bros., of Chicago, Illinois. The evidence shows that Fiala had no notice whatever at the time of the drawing of this draft; that the draft stub was marked “spoiled” by Zirhut; and that the first intimation that Fiala received of this draft was when the monthly statement was sent to the bank by Tootle, Lemon & Co. As soon as this statement came, Fiala immediately noti
The evidence with reference to the charge against the defendant for the $1,000 taken by the cashier on November 8, the $2,000 on November 13, and $1,000 on November 20, alf in 1894, shows that the drafts, like the one just considered, were drawn by the cashier in favor of McLain Bros, on Tootle, Lemon & Co. and that the stubs of these drafts were marked “spoiled,” and that Piala had no notice of the drawing of them by the cashier. The evidence also shows that before the statement of charges for the drafts from Tootle, Lemon & Co. had been sent to the bank and before Piala had any knowledge that any such drafts had been drawn, Zirhut, the cashier of the bank, himself, notified the president and directors of the bank that he had been speculating on the Board of Trade in Chicago, and that he had lost $5,000. Two directors of the bank denied that he had told them that he had lost the bank’s money, but admitted that he said that he had lost $5,000. Zirhut, his wife and Piala all testified that these directors were informed that he, Zirhut, had lost the bank’s money. They all admit that after this notice the directors, Zirhut, and Piala went down to Milligan and examined the condition of the bank. It also appears that Zirhut and wife gave a deed to the bank for some property that they owned in Milligan to secure his indebtedness, and that this deed was at the bank on December 1, 1894, the day that this examination was made. It also appears that after this examination the board of directors permitted Zirhut to remain in charge of the bank as cashier. We think, in view of this notice, the officers of the bank are not in shape to complain of the alleged default of Piala in not notifying them further of the shortcomings of their cashier.
On the charge for alleged damages to the bank by obtaining money from it by forged and fictitious notes, we think there is some evidence offered by the plaintiff tending to show the liability of the assistant cashier for knowingly
It is therefore recommended that the judgment of the district court be reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Beversed and remanded.