123 P. 352 | Cal. Ct. App. | 1912
The complaint, in so far as essential to a consideration of the question involved, shows that one Henry P. Kenyon was the duly appointed and qualified guardian of the person and estate of Frank C. Kenyon, alias Frank C. Davis, a minor; that for the purpose of enabling Kenyon to qualify as such guardian, pursuant to an order of court, plaintiff duly executed an undertaking in favor of the minor conditioned for the faithful performance of the duties imposed upon Kenyon as such guardian; that on February, 1908, one C. T. Clifford, of Clarksville, Missouri, sent to defendant bank a check reading as follows:
"Clarksville, Mo., Feb. 7, 1908. "CITIZENS' BANK.
"Pay to Henry Kenyon, guardian for Frank C. Kenyon, a minor, alias Frank C. Davis, a minor, or order, $438.14, four hundred thirty-eight and 14/100 dollars.
"C. T. CLIFFORD, "Curator for Frank C. Davis, a Minor."
— with instructions to deliver the same to Henry F. Kenyon as guardian of Frank C. Kenyon, alias Frank C. Davis, a minor, upon obtaining his receipt therefor; that the bank delivered the check as instructed and took Kenyon's receipt therefor as such guardian, and forwarded the same to Clifford; that Kenyon duly indorsed the check as such guardian, presented it to the bank, and requested that it open an account with him in his individual name and when collected place the amount of the check to such account; that the bank collected the amount of the check and, as requested by Kenyon, placed the proceeds thereof to his individual credit, having *439 knowledge at the time that the money did not belong to him, and that he individually had no right thereto or interest therein, and that his sole right and interest to and in the same was in his capacity as such guardian; that thereafter Kenyon drew his checks upon such account, which checks the bank paid to him personally, or as thereby ordered, the amount so paid out of said fund being $437.50, all of which belonged to said minor, and for all of which the guardian failed to account or pay over to his ward; that said Henry Y. Kenyon died insolvent, and plaintiff thereafter paid to his successor as guardian of the minor the sum of money so embezzled from the estate of his ward, and which sum, after demand therefor made by plaintiff upon defendant, it refused to pay.
Defendant demurred to the complaint, alleging, among other grounds therefor, the failure to state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff standing upon its complaint, judgment was entered for defendant, from which plaintiff appeals.
In our opinion there was no error committed by the court in sustaining the demurrer upon the ground stated. For our purposes, it may be conceded that plaintiff, as surety for the faithful performance of the duties of Henry F. Kenyon, as guardian, by paying to the estate of the minor the amount due from the estate of the deceased guardian, acquired by operation of law the right of the minor to recover against the estate of the deceased guardian, or, if such right existed in favor of the minor, against the defendant herein. The question, therefore, presented for determination is whether the acts of the defendant bank in connection with the transaction were of a character which rendered it liable to the minor for the loss sustained by the admittedly wrongful acts of his guardian. Appellant has cited numerous authorities in support of its contention that the bank, by reason of accepting the check wherewith it opened an account with Kenyon individually, and when collected placed the amount thereof to his credit in such account, became a party to the fraud and participant in the wrongful acts of the guardian. The extent to which such authorities go in sustaining the contention is sufficiently illustrated by reference to Carroll Co. Bank v. Rhodes,
It is conceded that the bank upon presentation of the check duly indorsed might properly, and without cause for complaint, have paid the full amount thereof to Kenyon in cash. *441
This being true, we conceive no reason preventing it with equal propriety from holding it at his request, either as a general or special deposit, subject to his order. The case ofDuckett v. Bank,
We deem it unnecessary to discuss other grounds of demurrer interposed.
Judgment affirmed.
Allen, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 1, 1912. *442