70 Neb. 127 | Neb. | 1903
As stated by counsel, this action “was brought by the plaintiff’s for the recovery of damages in the alleged sum of $1,000 of and from the defendants, upon the ground that the def(aidants had’wrongfully and unlawfully caused the First National Bank of Schuyler, Nebraska, to divert and misappropriate, and prevented it from paying to the plaintiffs the. sum of $608.95, which the plaintiffs, in their firm name of H. R. Penney & Co., had on deposit in said bank, on and after July 21, 1900, subject to check or draft., and justly payable on demand and due from the said bank to the plaintiffs.” It appears that, prior to the. time the controversy arose, plaintiffs were conducting a so-called brokerage business in the city of Omaha and had as correspondent at Schuyler one Brown, doing business under the name of Black & Co. Brown testified, to use his own words, that he was “running a bucket-shop in Schuyler, transacting business with H. R. Penney & Co.” When asked his meaning, he stated that he was “dealing in the grain market, or supposedly in the grain market,” ami that he did not know whether he was buying grain or not, and could not state just what the transactions in which he was engaged were. As money was paid to Black & Co.
It is beyond controversy that the money was received by Black & Co., as margins put up in a bucket-shop transaction, and that neither Black & Co. nor plaintiffs gave any other or further consideration therefor whatever. Hence, Ave think plaintiffs could be held by Louis T. Bryant, as constructive trustees, so long as the money or some part of it remained in their hands. The course of dealing between the parties Avas nothing more nor less than gambling upon the price of grain, and, in effect, the plaintiffs
• When, however, the said Louis T. Bryant brought an action against the plaintiffs for money had and received and garnisheed the defendant bank, he abandoned his claim upon the specific fund, and recognized plaintiffs as the owners thereof. Hence, if it were a mere question of whether the bank is or is not indebted to plaintiffs in the amount of the deposit, it would be necessary for us to inquire into the validity of the garnishment proceedings. But, in the present action, we do not think that matter involved in any way. An officer or agent of a corporation is not liable personally to third persons for mere failure to perform some duty which the corporation may have
“Where the wrong done consists of mere nonfeasance— of the mere failure to perform some duty which the corporation, his principal, owes to the plaintiff — then, the corporation only is liable; but where it consists of misfeasance — an affirmative act wrongfully ordered or done against the plaintiff — then, he can not escape liability by setting up that it was the act of the corporation; for, although the corporation may be liable, he may be liable also; he as a personal trespasser; it, on the principal of respondeat superior. It is, in the eye of the law, like other cases of joint trespass.” 4 Thompson, Corporations, sec. 4669.
The president and cashier of the bank, in this case, did nothing more than refuse to pay out the money upon plaintiffs’ draft and the subsequent demand by letter. There was no conversion or misappropriation of the fund; it was simply held to await the result of the garnishment proceedings. All that can be charged is that, the bank being under a duty of paying the money to plaintiffs, its officers did not perform that duty. In other words, plaintiffs’ case is one of nonfeasance, so far as the president and cashier of the bank are concerned, not of misfeasance or active trespass or wrongdoing. It follows that the defendants, Bryant and Rathsack, are not liable in this action; and, this being so, we do not think the bank may be held. Where a joint liability is asserted against several defendants, in order to maintain an action against one or more of them in a county other than that wherein they reside or are found, the latter are not to be held upon a different and several liabilty, even though it is disclosed by the pleadings and proofs. Stewart v. Rosengren, 66 Neb. 445. From the pleadings it is evident that the defendant, the First National Bank of Schuyler, was not and could not have been served with process in Douglas county. The district court had a right to, and doubtless did, take judicial notice of its own record in the case then before it,
We therefore recommend that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.