21 W. Va. 504 | W. Va. | 1883
announced the opinion of the Court:
As neither the report of said comnissioner, nor the evidence supporting the same, nor any of the exceptions thereto, nor any evidence taken in the progress of the cause appears in this record, the court cannot determine, whether the said exceptions ought to have been sustained or not; but as all things done by the court are presumed to be rightly done, until the contrary is made to appear, it must in the absence of such proof be presumed, that the said exceptions to said commissioner’s report were rightly disposed of. Callaghan v. Kippers, 7 Leigh 608; Harris v. Lewis, 5 W. Va. 575. In considering the questions of law presented by the defendant’s demurrer to the plaintiff’s bill it-will be well to examine the grounds, upon which courts of equity have assumed to exercise jurisdiction over matters of account. . A court of equity is said to have “jurisdiction in cases of rights recognized and
The counsel for the plaintiffs, to maintain the 'sufficiency of the bill in the case at bar, rely in substance upon two propositions, assuming, that, if they can maintain these, the defendant’s demurrer was rightly overruled. The first proposition is, that the said George Jeffries as the cashier of the plaintiff was, during his continuance in office, its trustee, for the benefit of all persons interested in its assets; and secondly, that even if he cannot properly be held as a trustee, yet as its trusted and confidential agent, having charge of its funds, it was his duty to keep careful accounts of all his transactions in dealing with said funds, and that whether he be treated as trustee or as agent, a court of equity is the proper tribunal, in which to require him to settle his accounts.
As the cashier of the plaintiff’the said George Jeffries occupied the most confidential relation to it; he was intrusted with the custody, care and management of all its funds; he received and disbursed them in the line of his duties as cashier, and was charged with the duty of keeping the accounts of all these transactions upon the books of the bank, by examination of which stockholders could learn the true condition of the property entrusted to his care; and it was his duty to account for, and pay over to the plaintiff all moneys in' his
At this point in the consideration of this case, the plaintiffs real difficulty begins. The bill seems to have been prepared in ignorance of any material fact, necessary to be alleged to charge said cashier with any liability whatever; for certainly it such facts had been known to the pleader, they would have been alleged. The only allegation, that can be, found in it is, “that several years ago, the defendant was appointed and acted as the plaintiffs cashier; ” and this single allegation is sufficient to show, that the plaintiff had the right to sue in a court of equity to settle said accounts, if any remained to be settled, and to charge him with any liability resting upon him, if any such existed. Upon all the other causes of complaint on the part of the plaintiff, if any such there be, the bill is silent; and they are left wholly to conjecture.
It must be borne in mind, that the demurrer to the plaintiff’s bill not only raises the question, whether any bill could have been sustained against the said Jeffries, but also whether the plaintiff’s bill filed in this ease is sufficient to entitle the plaintiff to any of the relief prayed for. If it is, the said demurrer was rightly overruled; if not, it ought to have been sustained. Upon an examination of the bill it is manifest, that it wholly fails to allege, that any of the moneys of the plaintiff, loaned by said Jeffries while acting as its cashier, has not by the borrowers thereof or by the said cashier been repaid; or that the said plaintiff has sustained any loss whatever by the unauthorized loans of any of said moneys; or that the said Jeffries had in airy other manner misapplied or
But while wo are of opinion, that the said demurrer ought to be sustained, yet we are not able to concur in the opinion of the counsel for the appellants, that a court of equity has no jurisdiction in any suit brought against the said Jeffries to charge him with any liability for any misfeasance while acting as plaintiffs cashier. On the contrary holding, as we do, that Jeffries while acting as such cashier was a trustee for plaintiff and its stockholders, he may be held liable for any intentional misapplication or wrongful appropriation of its funds or for any careless and negligent management thereof, whereby he has caused a loss of any part thereof, and that he may be sued therefor in a court of equity, which is the appropriate tribunal, and be compelled to settle and account for the funds so misapplied, misappropriated or lost. Thornton v. Thornton, 31 Gratt. 212; Story Eq. Juris, sec. 460; Zetelle v. Myers, supra; Berkshire v. Evans, supra.
For the reasons hereinbefore stated it is adjudged, ordered and decreed, that the said decree of the circuit court of Kanawha county, rendered on the 9th day of January, 1878, be wholly reversed and annulled. And this Court now proceeding to render such decree, as the said circuit court ought to have rendered, it is further adjudged, ordered and decreed, that the said defendant’s demurrer to the plaintiff’s bill be sustained, and that this cause be remanded to the said
Decree Reversed. Cause Remanded.