First Nat. Bank of Baltimore v. Gerke

• Decision Date: 14 March 1888
• Citation: 13 A. 358,68 Md. 449
• Parties: FIRST NAT. BANK OF BALTIMORE v. GERKE.
• Court: Maryland Court of Appeals

13 A. 358

68 Md. 449

FIRST NAT. BANK OF BALTIMORE v. GERKE.

Court of Appeals of Maryland

March 14, 1888

Appeal from superior court of Baltimore city.

Action on a bond executed to plaintiff, the First National Bank of Baltimore, by John D. Lisle, principal, and Charles Gerke surety, defendants. Judgment was rendered for defendant Gerke, and plaintiff appeals.

J Alex. Preston, for appellant.

Bernard Carter and Ed. N. Rich, for appellee.

ALVEY C.J.

This action was brought upon a bond by the appellant against John D. Lisle and the appellee, the latter being surety. Lisle, the principal in the bond, having absconded, was returned "not summoned." The bond bears date the 13th of August, 1867, and was given by Lisle upon his appointment by the appellant to the position of assistant book-keeper in its banking house. The bond recites that "whereas, the above-bound John D. Lisle hath been duly appointed a clerk of the said First National Bank of Baltimore," therefore the condition of the obligation is such "that if the said John D. Lisle, for and during the time he shall continue in employment in the said First National Bank of Baltimore, shall faithfully and honestly perform all the duties and services in the said First National Bank of Baltimore which shall, from time to time, be required of him by the board of directors of said bank, or the president or cashier thereof, or by or under their authority, and faithfully and honestly fulfill all the trusts that shall be by them, or by or under their authority, in him reposed, in his said appointment of clerk of the said First National Bank of Baltimore, then this obligation to be void; otherwise, to be and remain in full force and virtue." The bond was duly accepted and approved by the board of directors as the "bond of John D. Lisle as clerk." The appellee pleaded general performance of the condition of the bond, and that plea was simply, in an informal way, traversed by the appellant, and thus an issue was formed, upon which the case was tried. The proof in the case shows that Lisle remained in the employ of the bank from a time prior to the date of the bond, in August, 1867, to the 27th of January, 1887; and that during that time his clerical position, and the amount of his salary, were repeatedly changed. His duties and functions were not only multiplied and enlarged, but his responsibility, and his facility for peculation, were greatly increased. From being an assistant book-keeper at the time the bond was given and accepted, he was in June, 1870, appointed to the position of deposit book-keeper; and in November, 1871, he was made discount and foreign collection clerk. This latter position he held until January, 1872, when he was placed in the position of note teller and discount clerk, which position he held down to the time of his leaving the bank. The duties of his position of note teller and discount clerk required him to keep separate, and to collect as they fell due, all the notes discounted by the bank, and to collect all checks and drafts coming to the bank for collection; and the money thus received by him it was his duty to account for and pay over to the receiving teller at the end of each day, or at the beginning of the next day. These duties and functions pertained to the position assigned to Lisle, and held by him from January, 1872, to the time of his absconding; and all the large defalcations, amounting in the aggregate to near about $90,000, were committed by him during the time that he held the position of note teller and discount clerk. As assistant book-keeper,--the position held by him at the time the bond was given,--it was no part of his duty to receive or pay out any of the moneys of the bank; and it was in proof that the appellee was informed by Lisle, at the time the bond was given, that he (Lisle) was appointed the position of assistant book-keeper in the bank.

Upon all the evidence, the appellant asked the court to instruct the jury that if they should find that Lisle, from the delivery of the bond to the time of his leaving the bank acted as clerk in the bank, and that while so acting he received sums of money belonging to the bank which he fraudulently retained, the appellant was entitled to recover. This prayer was rejected by the court, and we think rightly so. It proceeds upon the theory that, as long as Lisle continued to hold a clerical position in the bank, the terms of the...