24 A.2d 477 | Conn. | 1942
The plaintiff had on deposit in the defendant savings bank on April 18, 1933, the sum of $20,000, which was properly entered in a deposit book issued to it. No further deposits were made, but interest was from time to time credited upon the book. There were entered in it one large and a number of small withdrawals. On October 1, 1939, the balance *512 on deposit as shown by the book was $10,062.50. The plaintiff brought this action to recover this amount and obtained judgment therefor, with interest. The entries of the account on the books of the bank, however, showed other withdrawals and the bank claimed that the balance due on the account was $3777.47 plus certain dividends which accrued after October 1, 1940.
The discrepancy between the entries in the deposit book and those upon the books of the bank was due, as the trial court has found, to the following circumstances: Harold P. Hull was, throughout the period in question, secretary and treasurer of the plaintiff and also assistant treasurer of the bank. The deposit book was in his charge and possession except for short intervals when it was delivered to the plaintiff's auditors. The withdrawals not appearing on the book were made by Hull either in cash or by checks of the defendant signed by him as assistant treasurer and made payable to himself, the plaintiff or one of two banks other than the defendant, in one of which the plaintiff carried a commercial account. Hull placed in the defendant's files, to represent these withdrawals, receipts signed in the name of the plaintiff by himself as treasurer. His purpose in making the withdrawals as he did was to cover misappropriation of moneys to his own use. While the last finding is attacked in the assignments of error, it was a reasonable inference which the trial court might properly draw from all the facts in evidence. No material change can be made in the finding.
When Hull took from the defendant's bank cash representing withdrawals or when checks of the bank representing withdrawals were paid by it, if Hull had the authority as an officer of the plaintiff to make them and if they were not improper in view of the purpose *513
and manner in which they were made, the indebtedness of the defendant to the plaintiff was pro tanto discharged; but if Hull lacked authority to make the withdrawals or they were improperly made the bank, in the absence of ratification or estoppel, remained liable to pay the plaintiff their amount. Graham v. Southington Bank Trust Co.,
There is nothing in the facts proven upon which to base a conclusion that the defendant is chargeable with knowledge of Hull's fraudulent purpose except as that might be imputed to it from his position as its assistant treasurer handling the transactions. The general rule is that knowledge of an agent will not ordinarily be imputed to his principal where the agent is acting adversely to the latter's interest. Resnik v. Morganstern,
The case of Lowndes v. City National Bank,
In the case before us the defendant has received no benefit growing out of the fraudulent transaction, but is merely resisting a demand that it pay to the plaintiff sums representing those which Hull had already withdrawn. The defendant is not charged with the knowledge which Hull had as to the fraudulent scheme upon which he was engaged.
We may, then, leave out of consideration, in determining the defendant's liability in this action, any question as to the effect of Hull's fraudulent purpose. It remains to inquire whether, in making the withdrawals as he did, Hull acted beyond the scope of his authority. A by-law of the bank, printed in the deposit book, provided as follows:
"All deposits shall be entered on the Treasurer's Books, and on a deposit book to be given to each depositor, in which shall be also printed this By-Law. Each depositor, on his first deposit, shall by this act be considered to assent to and be bound by this By-Law.
"No payment shall be made except to the depositor or upon his written order, nor except upon presentation of his deposit book, that the payment may be entered therein.
"The deposit book shall be the voucher of the depositor, and possession of the deposit book shall be sufficient authority to the Society to warrant any *517 payment made and entered in it, and any payment to a person producing a deposit book issued by this Society shall be a valid payment to discharge the Society."
These provisions became a part of the contract between the plaintiff and the defendant with reference to the deposit, and, in the absence of some further agreement or waiver, the bank could not properly pay out any part of the deposit except in accordance with them. Chase v. Waterbury Savings Bank,
The directors of the plaintiff met once a year to hear and approve the treasurer's report, elect a secretary and treasurer, appoint an auditor, provide for compensation for these officers and vote to indorse premiums on outstanding policies. There is no basis for any claim that Hull was held out as possessing any apparent or ostensible authority; Zazzaro v. Universal Motors, Inc.,
Under these findings "in legal contemplation he was the corporation." Lewis v. Hartford Silk Manf. Co.,
We have not overlooked the decision in Chase v. *519
Bank,
There is no need to consider the other errors claimed.
There is error, the judgment is set aside and the case is remanded with direction to enter judgment for the plaintiff for the amount due to it after crediting withdrawals made by Hull but not entered on the plaintiff's deposit book.
In this opinion the other judges concurred.