| Mo. Ct. App. | Jun 15, 1896
This is a suit in equity to charge the estate of the First National Bank of Sedalia with the sum of $2,275 as a preferred claim. The judgment below was in defendant’s favor and plaintiff appealed.
The material facts disclosed in the record are about as follows: In the year 1885, plaintiff Leonard, a resident of Howard county, Missouri, loaned, through J; O. • Thompson, cashier of the Sedalia bank, to one G-reen, of Pettis county, the sum of $5,000, taking as security a deed of trust on a section of land. The loan was continued over past due, G-reen paying the interest, until August, 1891, when Thompson reported to G-reen that Leonard wanted his money, and at the same time advised G-reen that he, Thompson, could place the loan with some eastern parties, Marshall & Company,’ of West Chester, Pennsylvania, and at a lower rate of interest. Thereupon G-reen made a new note for $5,000, payable to Marshall & Company, and along with it a deed of trust, dated August 1,1891, and gave the paper over to Thompson with instructions to get the money from Marshall & Company and pay off the Leonard loan. Thompson took the papers for the Marshall loan, and without the knowledge or consent of either Green or Leonard, placed the same with his own private papers, where they remained until February, 1892, when he, Thompson, wrote to Leonard that Green had then arranged for a new loan, and requested Leonard to assign and return his note to him, Thompson, so that he could have the record satisfied; that he, Thompson, would then collect and remit the money. Leonard did as Thompson suggested, assigned the
It is further proper to state that Leonard was not advised of the payment of his claim against Green until some time afterward, when the Sedalia bank was closed and Thompson had fled the country, charged with various crimes and delinquencies, in connection with the affairs of the institution he had long conducted. Leonard wrote Thompson asking what had been done in the matter, and Thompson misled him by stating that Green had failed to secure the eastern loan as expected, but that he would shortly; and when at last Leonard asked for the return of the Green note and
The entire history of the transaction will not be complete without a further statement as to how Thompson used the name of “Oreen loan” to bolster up his accounts in the bank. From what has already been stated, it will be seen that from August 1, 1891 (when Oreen gave over to Thompson the papers for the new loan) to the latter part of February, 1892, Thompson held the papers and failed to conclude the arrangement for transferring the loan from Leonard to Marshall & Company. He kept Leonard in the dark by the misrepresentations already noticed, and, in addition, sent to Leonard the interest, as if paid by Oreen, and deceived Marshall & Company by telling them that Oreen was trying to effect a sale of his property and thereby pay off the Leonard loan. Oreen, in the meantime, thought the transaction was long since closed.
While Thompson thus held the papers for the Marshall-Oreen loan, he seems to have been largely in arrears with the bank of which he had charge. So, in December, 1891, in order to enlarge the credit side of his individual account — or, rather, to reduce the debtor column — he debited the “sundry bank” account with $4,925 (which was the amount of the Oreen loan, less $75 commission) and credited his individual account with a like sum. And this was carried in this shape until after the loan was fully consummated the following year.
I. As we view this controversy, the controlling facts are few and practically undisputed. Leonard sent to Thompson the Oreen note, with instructions’to collect and remit. Thompson made the collection, but fraudulently concealed the matter from Leonard; then
The question, then, is whether or not Thompson’s knowledge in the transaction is to be imputed to the Sedalia bank. We think it must. It is a rule of law that notice to the agent, while prosecuting the business intrusted to him, is notice to the principal. The testimony shows that not only was Thompson cashier of the Sedalia bank, with all the authority which that position implies, but he had and exercised, at the time and for years prior thereto, complete and entire management and control of its business, unhampered and free of any dictation or instruction from other officers. For the purposes of its business he stood in place of and personated the bank. As the plaintiff’s agent, then, Thompson collected this money; and as the sole and only acting representative of the bank, he received and misappropriated the same — diverted it from its legitimate owner and wrongfully added it to the assets of his bank. In handling plaintiff’s money, he occu
In view, then, of the relation which Thompson bore to the bank, when the latter received the $2,275, it must be deemed as having knowledge of the trust character of the fund and to have become a party to its wrongful conversion. The rule declared in Bank v. Lovitt, 114 Mo. 519" court="Mo." date_filed="1893-03-13" href="https://app.midpage.ai/document/merchants-national-bank-v-lovitt-8010834?utm_source=webapp" opinion_id="8010834">114 Mo. 519, to the effect that, “when an officer of a corporation is dealing with it in his individual interest, the corporation is not chargeable with his uncommunicated knowledge of facts derogatory to his title to the property which is the subject of the transaction,” can not be used here to protect the bank as an innocent holder of the diverted trust fund in question. As said in Steam Stone Cutter Co. v. Myers, 64 Mo. App. 527" court="Mo. Ct. App." date_filed="1896-01-20" href="https://app.midpage.ai/document/steam-stonecutter-co-v-myers-6618288?utm_source=webapp" opinion_id="6618288">64 Mo. App. 527, that principle has usually, if not always, found its application when one officer of the corporation shall have notice and then deal with other officers who are innocent. And it is held in such cases that he does not, in the particular transaction, represent the corporation, but himself alone; the knowledge he has, under such circumstances, he is under no obligation to disclose, and hence notice will not be imputed to the corporation principal. But the facts of the case at bar take it out of that line of decisions. Here Thompson was the sole representative of the bank; he had the exclusive management of its affairs; he, as agent for Leonard, and holding in trust the latter’s money, turned it over to the bank on whose account he, as its agent, received and misapplied it.
Under these circumstances we think it clear that the Sedalia bank was at. the time chargeable with knowledge of Thompson’s fraud, and that it took plaintiff’s money with full notice of the trust impressed thereon. We cite a few of the leading authorities sus
The case of Atlantic Mills v. Indian Orchard Mills, above cited, is full of valuable suggestions and citations bearing on this case. Gray was the common treasurer of two corporations, and in order to make good his deficit to one, he drew checks upon the other, payable to the order of the first, by which the money was drawn and used, no other officer of either knowing the facts. He charged himself upon a private memorandum with a part of the money, and falsely entered the remainder upon the books of the corporation upon which the checks were drawn, as loans to a third person,' which loans were, in fact, never made and were entirely fictitious. It was there held that the corporation using the money was affected with Gray’s knowledge, and that the transaction did not amount to a payment of the deficit. In the opinion, the court says: “It is true that no officer of the plaintiff besides Gray knew of the fraudulent origin of these cheeks; but in every transaction of receiving them, the plaintiff was represented by Gray, and by him alone, and is bound by his knowledge. It is the same as if the plaintiff’s directors had received the checks, knowing what he knew. Eor the purpose of accepting the checks, Gray stood in the place of the plaintiff, and- was the plaintiff. It is quite immaterial in reference to this question, in what manner and by what officers of the corporation the funds were afterward used. * * * The effect of knowledge is to put the plaintiff in the same position that it would be in if there were no pretense of a consideration moving from it. In order to
II. The case thus far made is that plaintiff’s-money in Thompson’s hands was a trust fund, and that the Sedalia bank received it with knowledge that it was-such trust fund and wrongfully mixed it with its own assets. The remaining question is, can plaintiff follow the money and charge the general assets of the bank as a preferred claim.
As to how far it is proper to go in following a trust fund — that is, what degree of identity should be established by the party seeking to reclaim his property— the authorities are not at all in harmony. According to one class of decisions, the old equity rule is adhered to, that is, that there can be no recovery unless the trust fund shall be definitely identified, or clearly traced into some specific property; while, according to what is termed the doctrine of modern equity, it has been held sufficient if the trust fund can be merely traced into the general estate of the defaulting trustee.
It will serve no useful purpose to go over and discuss these opposing authorities, since our supreme court has clearly aligned itself with the modern equity rule. Harrison v. Smith, 83 Mo. 210" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/harrison-v-smith-8008025?utm_source=webapp" opinion_id="8008025">83 Mo. 210; Stoller v. Coates, 88 Mo. 514" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/stoller-v-coates-8008648?utm_source=webapp" opinion_id="8008648">88 Mo. 514.
In the first case, after discussing various authorities, it was said, that “where the trust money of plaintiff was mingled wrongfully, if not fraudulently, with funds of the bank, and went into its business operations, a very short time previous to the assignment of its effects, and while not clearly traceable to any particular asset of the bank, the fact remains that it went
This feature of the present case is settled by the foregoing decisions, contrary to defendant’s contention. Nor is their authoritative force at all impaired by Phillips v. Overfield, 100 Mo. 466" court="Mo." date_filed="1890-04-15" href="https://app.midpage.ai/document/phillips-v-overfield-8009787?utm_source=webapp" opinion_id="8009787">100 Mo. 466. The cases are not analogous, and besides the court there refers'with approval to Harrison v. Smith.
There is no merit in the claim that plaintiff lost his rights by failure to move promptly against the bank, for the wrongful conversion of his money. Plaintiff was deceived by the fraudulent practices of Thompson, and the delay in bringing suit was clearly caused thereby.
The judgment will be reversed and the cause remanded, with directions to enter judgment for the plaintiff as prayed.