109 S.W.2d 47 | Mo. Ct. App. | 1937
Lead Opinion
Appellant, a surety company, will be called plaintiff herein and respondent, a bank, will be called defendant. Plaintiff had executed a surety bond in favor of the Continental Construction Company, herein called Continental, promising, for a consideration, to indemnify it against loss by reason of the dishonesty of its employees. The amount of the surety coverage was $100,000, and among the employees whose dishonesty was insured against was one Chaney, a pay-roll clerk. It was the custom and duty of the field foreman on the job to compile, semimonthly, a list of the names of field employees, rate of pay, and time worked, and forward same to the pay-roll department in Kansas City, where Chaney compiled summaries of same, prepared checks in accordance with said summaries, and took the whole to the proper company officials for verification and signature of pay checks. Beginning August 30, 1930, Chaney began adding the names of former employees, who were no longer working, to the time sheets sent in by the foreman, carrying such names over to the summary, and preparing checks payable to them. The proper officers would innocently sign said checks, together with those of regular employees. Chaney would then forward checks of regular employees to the proper destination and would abstract the checks of former employees so prepared, forge the indorsement of the named payees, and present them to defendant, the depository of Continental, where they were paid to Chaney by defendant, and charged to Continental's account. The checks sued on total the sum of $1,516.75, and all were cashed at window # 4 of defendant. The first such check cashed, together with seven others, bore Chaney's own indorsement in addition to the forged indorsement of the payee named therein. Defendant knew Chaney, but innocently *414 cashed said checks in regular course of business, believing them to be genuine in every respect. Continental discovered its loss, notified plaintiff, and, upon forms supplied by plaintiff, submitted detailed proof thereof, accompanied by signed confessions of Chaney. On or about January 15, 1931, plaintiff indemnified Continental in full for the Chaney loss, first having demanded of defendant in the name of Continental, that it restore to Continental's account the amount of Chaney's peculations. Upon payment of the loss, Continental signed a release of plaintiff on form submitted by it. Immediately thereafter Continental paid plaintiff the required premium therefor and plaintiff increased its coverage back to $100,000, as it had been before paying the Chaney loss. About a year thereafter plaintiff sought, and received from Continental's successor, an assignment of its claim against all other parties, including defendant, by reason of its losses due to Chaney's forgeries and embezzlement.
On a trial to the court without jury, judgment was for defendant and plaintiff appeals. Several assignments of error are urged but they boil down to whether or not plaintiff was entitled to judgment on the above facts, practically all of which were agreed upon or were supported by documentary evidence. The appellate court should affirm a judgment, if possible, on any theory. [Ralston Purina Co. v. King et al., 101 S.W.2d 734.] In a case such as this, if the judgment was for the right party, it will not be disturbed on appeal, even though the trial court arrived at the judgment entered on a wrong theory. [Aloe v. Fidelity Mut. Life Ins. Assn.,
Defendant seeks to sustain the judgment on the theory that the best position plaintiff can take is that it stands in the shoes of Continental, either by assignment or subrogation, (although it claims that the assignment, having been executed a year after a simple release was executed, conveys no more rights than the original release conveyed; and asserts that plaintiff could not, because of lack of equity, become subrogated to any rights Continental may have had as against defendant), and that Continental itself, at the outset, had a choice of two remedies, the one by pursuing the embezzler and his surety, and the other by pursuing the bank; and that the two remedies are opposed to each other in theory and the election to pursue one remedy prohibited it or any successor to its rights, from pursuing the other.
There is no doubt but if there are two or more inconsistent remedies available, the election to pursue the one is a bar to any suit based upon the other. That is well settled law in this State. [Tower et al. v. Compton Hill Improvement Co.,
When Continental obtained full knowledge of all the facts of Chaney's forgeries and embezzlement, including the nature and amount of its loss, which it did prior to January 15, 1931, it had open to it two remedies. It could have demanded payment of its money from defendant on the theory that when defendant paid the checks on forged indorsements of Chaney the bank paid out its own money and not that of Continental. Since defendant had received Continental's money on deposit and had never been legally authorized to pay it out, it still had Continental's money and must account to Continental therefor. [Midland Savings Loan Co. v. Tradesmen's Natl. Bank,
The two theories are inconsistent with each other. See above citations, especially the last two in the preceding paragraph. On January 15, 1931, either defendant had Continental's money and was liable to it for money had and received, or Chaney had it and was liable for money had and received. Obviously, both could not have the same money at the same time. Continental could have proceeded against either, but could not go two ways at the same time. As the Scotch law is said to have it, one cannot both approbate and reprobate at one and the same time. Being in this position, it chose or elected, to pursue its money in the hands of Chaney. It notified plaintiff that the sums of money herein sued on "have not been paid over or satisfied in any way whatever to the said Employer, except as herein stated, have been fraudulently misappropriated by the said employee to his own use and benefit with the intent to deprive the said employer of same, notwithstanding that due and legal demand has been made by the said Employer upon the said Employee for the same." Thus it will be seen that Continental took the position that Chaney had its money, demanded return of same from him, and claimed that he had converted it to his own use. Failing to get it from Chaney, it made demand upon Chaney's bondsman, plaintiff, who had contracted with Continental for a consideration, to indemnify the latter for any loss occasioned by Chaney's embezzlement. Chaney could not be liable to Continental upon any theory of embezzlement unless the money alleged to have been embezzled was the property of Continental. That is hornbook law.
When Continental, in possession of all of the facts, made demand, and when plaintiff, fully advised of the facts, paid the loss it had contracted to pay, the election of Continental was completed. Continental could not thereafter assert its claim against defendant, and, by no theory of reason or logic can plaintiff be in a better position than Continental in this respect. The election of Continental to pursue to a successful conclusion one of two inconsistent remedies estops plaintiff from further asserting the claim. The result reached hereby is not only logical, but it is just and equitable; and the goal ever sought by the law is justice and equity, reached by logical reasoning.
The judgment is affirmed. Campbell, C., concurs.
Addendum
The foregoing opinion by SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur. *417