Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co.

• Citation: 100 F. 559
• Decision Date: 24 March 1900
• Docket Number: 792.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Parties: GUARANTEE CO. OF NORTH AMERICA v. Mechanics' SAV. BANK & TRUST CO.

100 F. 559

GUARANTEE CO. OF NORTH AMERICA v. Mechanics' SAV. BANK & TRUST CO.

No. 792.

United States Court of Appeals, Sixth Circuit.

March 24, 1900

Wm. L Granbery, for appellant.

E. H East, for appellee.

Before LURTON and DAY, Circuit Judges, and EVANS, District Judge.

EVANS District Judge.

The facts in this case are fully stated in the opinion of the court announced when it was previously here, and which is reported in 26 C.C.A. 146, 80 F. 766. They need not be repeated, further than to say, generally, that the action is based upon the stipulations of two separate covenants executed by one John Schart to the Mechanics' Savings Bank & Trust Company, with the appellant as surety on each,-- one binding the appellant to make good losses which might result from the misconduct of Schart as teller and bookkeeper of the bank, and the other to make good those losses of the bank, not exceeding $20,000, which might result from such fraudulent conduct of Schart, as its cashier, as should be equivalent to embezzlement or larceny. After the case was decided here, it was removed by a writ of certiorari into the supreme court of the United States, where the judgment was reversed upon the single ground that the court had not jurisdiction of the appeal, because the judgment upon which the appeal was taken was not final. 173 U.S. 582, 19 Sup.Ct 551, 43 L.Ed. 818. Upon the return of the case to the circuit court, a final judgment was rendered. This judgment, however was substantially the same as the one upon which the first appeal had been taken.

Upon the pending appeal, and as the case is again presented various errors are assigned, some based upon the judgment of the circuit court as it applied to the teller's bond, and others upon the judgment as it applied to the bond of Schart as cashier. Without again stating the reasons therefor, which were elaborately given in the former opinion of this court, we deem it sufficient to say that we reaffirm the conclusions of the court then announced, except in respect to that error complained of which relates to the sum of $5,992.35, make up of overdrafts upon the bank which had, without its authority, been paid by the cashier. It is true that this question was also passed upon when the case was heard before, but, coming to us again, we find ourselves unable, as the matter is now presented, to agree to what was then said upon that point. The cashier's bond stipulated that the appellant, as surety, should make good those losses of the bank which might result from such fraudulent actions of Schart, the cashier, as were equivalent to embezzlement or larceny. The obligation of the surety, by its express terms, was limited to that character of wrongdoing upon the...