97 Ga. 634 | Ga. | 1896
In. view of what we- consider the controlling questions in this case, it is not essential to deal specially with the numerous assignments of error contained in the record, and we shall therefore confine our remarks to the points upon which we have found it necessary to rule.
In the light of the foregoing considerations, we cannot think that the parties to this contract contemplated that the Bank would be bound to act upon mere constructive notice of Redwine’s shortcomings. The “knowledge” referred to meant actual knowledge. Constructively, whenever Red-wine — he being an employee of the Bank handling its money — misapplied the same, the Bank itself would have immediate notice of the fact; for his knowledge, as a servant of the Bank, would, if the doctrine of constructive notice were applicable, be its knowledge. Surely, the contract cannot be construed as contemplating any such result as this. Again, suppose another employee was colluding with Redwine in concealing his shortage; the knowledge of such other employee would be, constructively, the knowledge of the Bank. Or, suppose Redwine and another employee, also under bond, were both misappropriating the
In the absence of any guarantee on the part of the Bank that its other employees would be honest and faithful, and in view of the purpose of the condition inserted in the bond, it would seem that the better construction of it would be that the Bank only obligated itself to act in good faith and impart only actual knowledge on its part. The bond would, indeed, be of no practical protection if, in order to realize its benefits, the Bank had to insure, not only the honesty and fidelity, but the faithful and conscientious attention to duty, of a dozen others of its employees. Stupidity of an employee in not comprehending ordinarily apparent facts and circumstances which would be equivalent to actual knowledge if within the knowledge of the Bank itself, might lead to a forfeiture of the bond; while forgetfulness or mere negligent inattention to duty on the part of such employees would, bring about the same result.
The cashier, according to the undisputed testimony in this case, was a mere employee. Unless the Bank obligated itself to use his eyes and ears, if had no knowledge of Red-wine’s misconduct.
The following cases throw much light upon the subject under consideration: In Pittsburgh &c. Railroad Co. v. Shaeffer, 59 Pa. St. 350, s. c. 8 Am. Law Reg. (n. s.), 110, it was held that where an officer of a corporation violates his duty, knowledge on the part of other officers of the corporation of the default, or even connivance in it, does not discharge the sureties. In that case, the defaulting employee had given a bond, with sureties, for the faithful discharge of his duties. In delivering the opinion of the
In the latter case, it would seem that a mother bank established a branch, putting it into the hands of a directory for management, and itself appointing a cashier, requiring of him a bond. In speaking of a plea filed in defense to a suit upon the bond, Judge Robertson said, pages 569, 570: “It imputes to the directory of the branch bank only a knowledge of the delinquencies of the cashier, and a connivance at them. It was their duty, if they had any such knowledge, to communicate it to the mother bank. And if they failed to do it, there would be more reason for charging them with fraud on the mother bank, than for
Brandt, in his work on Suretyship and Guaranty, §369, recognizes and approves the doctrine laid down in the cases above referred to, and says, “If the sureties of one officer of a corporation could be relieved from liability by the neglect of duty of other officers of the coiporation, the corporation would be deprived of all remedy.” See additional cases cited by the author.
The above authorities will suffice to show that the doctrine of constructive notice has no application to transactions such as that in the present case. Not having required the Bank to insure the fidelity of all its other employees as
3. The insufficiency of The amended plea referred to in The third head-note is obvious. Even actual knowledge by The Bank of a default on The part of Redwine would not, of itself alone, release The Company from liability. It was further essential to this result that The Bank should fail to notify The Company of The default in question, as it bad contracted to do. As this plea alleged no such failure, it stated no valid defense to The action, and was properly stricken.
4. The fourth head-note points out what we regard as a fatal variance between the allegata and the probata. An allegation that the Bank bad furnished the proof of loss stipulated for by the contract, could not be sustained by evidence tending to show that the defendant bad waived such proof of loss. For this reason, it was error to deny a nonsuit. Judgment reversed.