Citizens' Trust Co. v. Tindle

• Decision Date: 22 December 1917
• Docket Number: No. 18369.,18369.
• Citation: 272 Mo. 681,199 S.W. 1025
• Parties: CITIZENS' TRUST CO. et al. v. TINDLE et al.
• Court: Missouri Supreme Court

199 S.W. 1025

272 Mo. 681

CITIZENS' TRUST CO. et al. v. TINDLE et al.

No. 18369.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Suit by Citizens' Trust Company and Pemiscot County Bank against A. C. Tindle and others. Demurrer to petition sustained, and judgment entered for defendants, and plaintiffs appeal. Affirmed.

Shepard & Reeves, of Caruthersville, and Oliver & Oliver, of Cape Girardeau, for appellants. Ward & Collins, of Caruthersville, and John E. Kane, for respondents. W. M. Fitch, Asst. Atty. Gen. (J. P. Gilmore, of Tulsa, Okl., of counsel), amici curiæ

WALKER, J.

This is a suit to recover on a bond of respondent A. C. Tindle for losses to the plaintiff bank on account of the embezzlement of its funds by Tindle as its cashier. The plaintiff trust company sues as assignee for the purpose of liquidating the assets of the bank of which the bond is a part. The defendants, other than Tindle, are the sureties on his bond.

The petition states the corporate capacity of the plaintiff trust company, its rights, powers, and privileges as such, and that it acquired, for value received by contract as assignee, all assets and claims of the Pemiscot County Bank for the purpose of liquidating the bank's unsettled business; that by virtue of said assignment it became a trustee of an express trust for said bank, and as assignee in connection with said bank it brings this suit. The corporate character of the plaintiff bank is alleged; that it did a banking business from the date of its organization until June, 1913, when it ceased to be an active concern, at which time it assigned its assets to the plaintiff trust company for the purpose above stated; that in April, 1912, defendant Tindle was elected and employed as cashier of said bank and on said date entered into a bond to said bank with the other defendants named herein, as sureties, for his faithful performance of the duties of cashier. The bond is then set forth in hæc verba. The parts material to a determination of the issues here submitted are as follows:

That Tindle, as principal, and the defendants, as sureties, naming them, are "indebted to the Pemiscot County Bank of Caruthersville, Missouri, in the penal sum of twenty thousand ($20,000.00) dollars, for the payment whereof, we and each of us bind ourselves, our heirs, executors and administrators, and every of them jointly, severally and firmly.

"The condition of the above obligation is, that whereas said A. C. Tindle, has been duly appointed by the board of directors of said Pemiscot County Bank, as cashier of said bank;

"Now therefore, if the said A. C. Tindle, shall well and faithfully perform all duties of the office of cashier of the said Pemiscot County Bank, respectfully, during the time for which he has been elected or appointed, the said above named and undersigned sureties hereby agree to hold the said Pemiscot County Bank harmless for any loss occasioned by any act of such officer, until all his accounts with the said bank shall have been fully settled and satisfied. It hereby being expressly understood and agreed, that the said sureties shall not be liable for any act of the said employé or employés resulting in loss to the said employer, whose act may have been committed prior to twelve o'clock noon on the 1st day of February, 1912, and subsequent to twelve o'clock noon of the 1st day of February, 1913."

The petition further avers that Tindle, as cashier of said bank, aided and assisted by Thos. B. Ward and L. A. Ferguson, as assistant cashiers, colluded and worked together with the fraudulent design of embezzling and misappropriating the money and funds of said bank. The course pursued by these parties to effect their purpose and plan to embezzle and misappropriate said money and funds is set forth, and it is alleged that said bank was unlawfully thus deprived by Tindle of large sums of money; that it was the duty of Tindle as cashier to see that the books of said bank were correctly kept to prevent those assisting him or in his employment from making false or fraudulent entries in the books of said bank whereby the funds of same might be embezzled and misappropriated; that Tindle failed to thus discharge his duties as cashier, and while acting as same fraudulently embezzled and appropriated to his own use several hundred thousand dollars of money and property of said bank; and that said bank thereby lost all of said sums of money. Then follows a statement of the nature, character, and amounts of these numerous embezzlements, which aggregate more than the penalty of said bond. The commission of the acts charged is alleged to have been by said Tindle while he was acting as cashier of said bank and within the line of his duty as cashier and during the time covered by his bond, to wit, between the 1st day of February, 1912, and the 1st day of February, 1913; and that his acts and misconduct constitute breaches of said bond; that defendants and each of them have failed and refused and still fail and refuse to account for and turn over to the Pemiscot County Bank said sums of money herein set forth as having been embezzled, which said sums were then and there the money and property of said bank. Whereafter the plaintiffs pray judgment against defendants for $20,000, the penalty of said bond, and that execution issue against defendants for the said sum as a part of the damages aforesaid.

Defendants demurred to this petition, assigning the following reasons therefor:

"(1) Because said petition shows on its face that the plaintiff has no legal capacity to bring this suit.

"(2) Because said petition shows on its face that said plaintiff is not the party in interest herein, and the suit cannot be maintained in the name of the plaintiff Citizens' Trust Company.

"(3) Because said petition fails to state facts sufficient to constitute any cause of action herein.

"(4) Because said petition shows on its face that the plaintiff has no cause of action against the defendants.

"(5) Because said petition is so indefinite and uncertain as not to apprise the defendants of their alleged cause of action or charge against the defendants.

"(6) Because said amended petition shows on its face that the many, divers, and various things set out and enumerated therein did not constitute any breach of the bond, and said petition fails to show any connection of any of the alleged many and divers matters and things set out in said petition are in any way connected or related to these defendants herein, or that said matters therein related and set out constituted any cause of action against the defendants herein.

"(7) And that said petition on its face shows that as to these defendants as sureties on the alleged bond, that all matters and things related in said petition did not constitute any breach of the bond set out in plaintiff's petition, and did not constitute any cause of action or ground of complaint against these defendants.

"(8) And that said amended petition shows on its face that there is a misjoinder of causes of action of many and divers and various and different alleged wrongful transactions on the part of the principal in the bond sued upon, A. C. Tindle, but which said charges do not constitute any violation of the bond and are alleged wrongful acts not properly joined in this action and do not constitute any cause of action against these defendants.

"(9) And there is a misjoinder of parties plaintiff therein."

The demurrer was sustained; and, the plaintiff declining to plead further, final judgment was entered for defendant, from which this appeal is taken.

I. It is urged, as one of the reasons to support the action of the trial court in sustaining the demurrer, that the Citizens' Trust Company was not a proper party plaintiff. We are not impressed with the soundness of this contention. The plaintiff alleges that the trust company acquired from the bank by assignment all of the assets, including choses in action, claims, and demands, due or to become due said bank, to be collected by the trust company and applied to the use of the bank. This contract of assignment constituted the trust company a trustee of an express trust. As such, it was authorized to sue in its own name. Section 1730, R. S. 1909. This authority, however, did not preclude the trust company from joining the bank therewith as a party plaintiff as one "having an interest in the subject of the action." Section 1731, R. S. 1909; Jones v. Railway, 178 Mo. 528, 77 S. W. 890, 101 Am. St. Rep. 434; Lee v. Railway, 195 Mo. 400, 92 S. W. 614. If therefore the bond can be made the basis of a cause of action under the allegations of this petition, the trust company was not without authority to sue and there was no misjoinder.

II. It is further contended that the assignment was unauthorized, and hence the trust company could not base a right of action thereon. Section 1084, R. S. 1909, is cited in support of this contention. It is as follows:

"It shall be unlawful in this state for a bank, private banker, savings and safe deposit company or trust company receiving deposits to make a voluntary general assignment of its business and affairs. In case it shall find itself to be in a failing condition, it shall immediately place itself in the hands of the bank commissioner. Any deed of voluntary general assignment executed by any such bank, private banker, savings and safe deposit company or trust company shall be null and void, and in case the officers or directors of any such institution shall endeavor to make any voluntary general assignment of its assets, the bank commissioner shall immediately take possession thereof and...