Home Sav. Bank v. Traube

• Decision Date: 31 October 1881
• Citation: 75 Mo. 199
• Parties: THE HOME SAVINGS BANK, Plaintiff in Error, v. TRAUBE.
• Court: Missouri Supreme Court

75 Mo. 199

THE HOME SAVINGS BANK, Plaintiff in Error,

v.TRAUBE.

Supreme Court of Missouri.

October Term, 1881.

Error to St. Louis Court of Appeals.

REVERSED.

Everett W. Pattison for plaintiff in error cited Rochester B'k v. Elwood, 21 N. Y. 88; Thompson v. Roberts, 17 Ir. C. L. 490; 2 Story Contracts, (5 Ed.) § 1122; Engler v. Ins. Co., 46 Md. 333; Blair v. Ins. Co., 10 Mo. 566; Gaussen v. U. S., 97 U. S. 590; U. S. v. McCartney, 26 Int. Rev. Rec. 28; Skillett v. Fletcher, 12 Jur. (N. S.) 295; 35 L. J. C. P. 154; 36 L. J. C. P. 206; Harrison v. Seymour, 12 Jur. (N. S.) 924; 35 L. J. C. P. 264.

Broadhead, Slayback & Haeussler for defendant in error, cited Miller v. Stewart, 9 Wheat. 680; Bonar v. McDonald, 3 H. L. Cas. 226; Allison v. Bank, 6 Rand. 204; Blair v. Ins. Co., 10 Mo. 560; Nolley v. Callaway Co. Ct., 11 Mo. 463; State v. Boon, 44 Mo. 262; State v. Sandusky, 46 Mo. 381; Orrick v. Vahey, 49 Mo. 431; City v. Sickles, 52 Mo. 122; Story's Eq. Jur., § 324; Fell on Guar. and Sur., 191; Pitman on Prin. and Sur., 208; Bowmaker v. Moore, 7 Price 231; Dedham B'k v. Chickering, 4 Pick. 314; White v. East Saginaw, 43 Mich. 567; Bank v. Burns, 46 N. Y. 170; Mayhew v. Boyd, 5 Md. 102; Rathbone v. Warren, 10 John. 586; Bellairs v. Ebsworth, 3 Camp. 53; Strange v. Lee, 3 East 484; Simpson v. Cooke, 8 Moore 588; Weston v. Barton, 4 Taunt. 673; 1 Bing. 452; De Colyar Guar. and Sur., 360, 433; Watts v. Shuttleworth, 7 H. & N. 353; Railton v. Mathews, 10 Cl. & F. 934; Whitcher v. Hall, 8 Dowl. & Ry. 27; Archer v. Hale, 4 Bing. 468; Eyre v. Bastrop, 3 Madd. Ch. 122; Smith v. U. S., 2 Wall. 233; McMicken v. Webb, 6 How. 296; Leggett v. Humphreys, 21 How. 76; U. S. v. Boyd, 15 Pet. 208; Kellogg v. Stockton, 29 Pa. St. 460; Hibbs v. Rue, 4 Barr 351; Tull v. Serrill, 1 W. N. C. 373; Manufacturer's, etc., v. O. F. Hall Ass'n, 48 Pa. St. 446; 2 Am. Lead. Cas., (5 Ed.) 390, 464; Burge on Suretyship, 214; Parsons on Bills, 574; 1 Greenleaf Ev., (10 Ed.) § 567, 564; FranklinBank v. Cooper, 36 Me. 179; Evans v. Bremridge, 2 K. & J. 174; Pidcock v. Bishop, 3 B. & C. 605; Hurlstone on Bonds, (7 Law Lib.) 58, 59; Farrar v. U. S., 5 Pet. 389; Brockett v. Brockett, 2 How. 238; Franklin B'k v. Steward, 37 Me. 542.

HOUGH, J.

This is an action against E. Traube and R. Bircher, as sureties in a bond given to the plaintiff by one Emil G. Rodel, for the faithful performance of his duties as bookkeeper for plaintiff. Certain questions of practice were discussed in the argument of the cause, but the conclusion which we have reached on the merits of the case, renders it unnecessary to say anything in regard to them.

The following extract from the referee's report presents the facts by reason whereof the defendants claim that they are discharged from all liability as sureties for Rodel:

“I find from the evidence offered in this case, that the plaintiff appointed Rodel as its bookkeeper on the 5th day of June, 1867, and that the bond in suit was given to plaintiff July 22nd, 1867, and that plaintiff did not employ said Rodel on the recommendation of defendants, or at their request. I find that the defendants were, each of them, acquainted with the duties and services ordinarily required of and imposed upon the bookkeeper of a bank, and that during the whole period of Rodel's service with plaintiff, the defendants had no information or notice that he was employed in any capacity by plaintiff, except as its bookkeeper. I find that during the time of the alleged breaches of the bond by Rodel, the plaintiff employed and used him as teller, in which capacity he received and paid out moneys of the plaintiff. I find that the ordinary duties of the bookkeeper of a bank do not require him to handle or have charge of any money, and that the ordinary duties of a teller of a bank require him to handle all the money--in other words, that as bookkeeper, Rodel handled no money of plaintiff, while as teller he handled it all; and that as teller, he was afforded opportunities and exposed to temptations to take and appropriate to himself the moneys of plaintiff, which were not afforded him as bookkeeper; but that his latter employment did afford him facilities for hiding his defalcations, as teller, by false entries in the books. I find, also, that the duties of a bank's teller are much more responsible, and a larger bond is required of him than in case of the bookkeeper. The losses sustained by the plaintiff by reason of the errors and misconduct of Rodel, consist of losses by his act as bookkeeper; and losses by his act as bookkeeper and teller.”

The losses which the plaintiff suffered by reason of Rodel's misconduct as bookkeeper, and on account of which judgment was rendered for the plaintiff by the circuit court, resulted from his failure to enter upon the books by which plaintiff settled with its customers, divers sums of money properly paid out by him as teller and duly entered on the teller's books, whereby the bank paid said sums a second time.

The defendants contend that the plaintiff, by causing Rodel to assume the duties of teller in addition to his duties as bookkeeper, increased the risk of the sureties without their knowledge or consent, and that they are thereby discharged from all liability on his bond. The general rule in regard to the liability of sureties, is well settled and has been repeatedly announced by this court. In the State v. Sandusky, 46 Mo. 381, it was said: “The liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further.” The same rule is asserted in other cases. Blair v. Perpetual Ins. Co., 10 Mo. 560; Nolley v. Callaway Co., 11 Mo. 463; State v. Boon, 44 Mo. 262; Orrick v. Vahey, 49 Mo. 431; City of St. Louis v. Sickles, 52 Mo. 122.

But we do not think that any of the cases cited sustain the position that if Rodel had honestly and faithfully discharged all of his duties as teller, but had fraudulently or negligently omitted to make entries in the books...