93 N.J. Eq. 163 | N.J. | 1921
The opinion of the court was delivered by
This is an appeal from an order made by the chancellor refusing to dismiss the complainant’s bill of complaint, and the only matters argued are that the hill does not disclose sufficient facts to sustain it, and that it is multifarious. The bill avers that complainant had deposited to his credit with a trust company, in 1912, $22,505, which remained in that condition until 1916, when complainant was stricken with an illness which caused a total loss of memory of this deposit; that in 1920 Ealph M. Kutz represented to the complainant that he had knowledge that the latter had over $25,000 on deposit in a certain financial institution and offered to reveal that knowledge if he would agree to pay him $10,199.53, and that such a bargain was made, whereupon Kutz induced the complainant to draw three checks on the Fidelity Trust Company of Newark, New Jersey, against this deposit for the sum agreed on, and pass them over to Kutz, who collected the money and deposited $8,000 of it to the order of Edith K. Evan, a relative of his, with, a banking or brokerage company doing business as C. I. Hudson & Company; that Kutz concealed, from the complainant the fact that he was in the service of the Fidelity Trust Company as chief accountant in charge of the accounts of depositors, and that when complainant discovered this, within three days after making the contract with Kutz, he went to the Fidelity Trust Company and informed it of
The inferences to be drawn from the facts charged are that when the complainant made this agreement and paid the money his mind was in an abnormal condition, which is to be inferred from the fact that he had absolutely, because of his illness, lost all memory of so large a deposit in a financial institution located in the city where he lived, without any reason other than his illness ; that Kutz was either an officer or the head of a department in the Fidelity Trust Company which gave him knowledge of the deposit, and also that he knew of the complainant’s illness and loss of memory, otherwise he could not have accomplished his scheme to secure nearty one-half of the deposit; that he concealed from the complainant all knowledge of his connection with the financial institution where the money was lodged, and declined to reveal it until the complainant had agreed to pay him nearly one-half of the amount on deposit. It is not pretended that the trust company would have had any right to malee any such bargain, and the only question remaining is whether one of its officers who obtained such knowledge because of his confidential relations with the trust company, and the account of this depositor, can avail himself of the bargain which he made with the depositor. That such conduct by a bank official holding a semi-confidential position to a depositor is contrary to fair dealing and good morals cannot be doubted. If the conduct of Kutz was not an actual fraud it is certainty, what is denominated, a constructive fraud.
In answer to the objection that the bill is multifarious, it is only necessary to say that the claim set up is against the fund
“Any person may be made a defendant who either jointly, severally or in the alternative is alleged to have or claim any interest in a controversy, or in any part thereof, adverse to the complainant; or who it 'is necessary or proper to make a party for the complete determination or settlement of any question involved therein.”
This rule applies to the present controversy, and, therefore, the objection referred to has nothing to rest on. In fact, it is hardly to he doubted that under the statute and rules now governing' the court of chancery the old-time objection of multifariousness. has been substantially done away with.
The order appealed from is affirmed, with costs.