232 Mass. 363 | Mass. | 1919
The bill having been taken for confessed against the individual defendants, the trust company appealed from the decree establishing the plaintiff’s claim. The plaintiff within the issue raised by the pleadings was properly allowed to show all of the various financial transactions with which Abbott, the defendant’s employee, had been connected, even if in some instances their bearing on.his defalcations may have been somewhat remote. The extent of the inquiry into collateral or immaterial matters also was largely within the discretion of the judge, which does not appear to have been exercised to the defendant’s prejudice, and on going over the record, it is manifest, that all the material facts are supported by evidence, to the admission of which no exceptions were saved. While the testimony was taken by a commissioner, the thirty-seven findings made by the judge, not appearing to have been plainly wrong, are to be treated as conclusive.
It is found that Abbott, employed as a bookkeeper by the defendant trust company hereafter referred to as the defendant, began systematically to steal from his employer, and by a series of false entries succeeded in concealing his withdrawals until he had abstracted $11,800, when he became acquainted with one Wood, employed by the plaintiff as a bookkeeper. The two then planned a scheme to defraud their respective employers, and as a result of their misdoings the present suit was brought after the plaintiff discovered that it had been defrauded of $15,000 through the payment of a check for that amount forged by Abbott. The transactions by means of which the plaintiff’s money was obtained do not appear to have been very much, if at all, in controversy. Abbott made fictitious entries on the defendant’s ledger as of
But, notwithstanding these facts, the defendant contends, that, not having been negligent and having acted in good faith, it can retain the money in satisfaction of Abbott’s defalcations, especially as it never received notice under the rules of the clearing house that the check was not good. It is argued, that the effect of the transaction is the same as if Abbott himself had gone to the plaintiff and obtained payment of the check from a teller acting in collusion with him, and then had paid the money to the defendant, who received it in good faith and in satisfaction of his
The case of Craft v. South Boston Railroad, 150 Mass. 207, cited by the defendant, calls for no comment. It is not an authority supporting the defendant’s contention, as fully explained in Newell v. Hadley, 206 Mass. 335, 345. The defendant, furthermore, if it claims the benefit of Abbott’s fraud practised upon the plaintiff, must in addition accept the burden of Abbott’s guilty knowledge. Atlantic Bank v. Merchants’ Bank, 10 Gray, 532. Newell v. Hadley, supra. St. Jean Baptiste Societe v. Worcester County Institution for Savings, 228 Mass. 556, 562. And the cases of Kelley v. Lindsey, 7 Gray, 287, Railroad National Bank v. Lowell, 109 Mass. 214 and Agawam National Bank v. South Hadley, 128 Mass. 503, on which it further relies, are not in point.
The defendant finally contends that it is exonerated under a rule of the clearing house, that “All checks, drafts, notes or other items sent through the Clearing House and found not good, missent, lacking endorsement or otherwise irregular, shall be returned directly to the bank from which they were received, and this bank shall immediately refund to the bank returning the same, in specie or legal tender notes, the amount received through the Clearing House for said items thus returned to it. Except on Saturdays, all such returned items shall be delivered not later than one o’clock P. M.; and on Saturdays not later than twelve o’clock noon.” The right of return secured by this rule “is a special provision in compensation for payment without inspection.” But where the discovery of the forgery, as in the present case, was not made in time to enable the plaintiff to return the check as of absolute right under the rule, “the case must stand as if the payment had been
Ordered accordingly.