Home Savings-Bank v. Traube

• Decision Date: 19 November 1878
• Parties: HOME SAVINGS-BANK, Respondent, v. E.TRAUBE ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 221

HOME SAVINGS-BANK, Respondent,

v.E.TRAUBE ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 19, 1878.

1. Any one aggrieved may appeal from a final judgment without the concurrence of his co-parties to the suit.

2. Where exceptions to the report of a referee have been overruled, a motion for a rehearing may be filed, and has the effect of suspending the judgment until its decision.

3. Sureties on the bond of the book-keeper of a bank are discharged when the bank, without the sureties' consent, employs the book-keeper as teller also; and it is immaterial whether the employee's acts which caused the bank's loss were done as book-keeper or as teller.

4. To accept a surety who is in ignorance of unusual circumstances which increase his risk, while he who thus accepts him knows of such circumstances and withholds the knowledge from the surety, is a legal fraud which discharges the surety.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

BROADHEAD, SLAYBACK & HAEUSSLER, for appellants: Where a motion for rehearing has been filed after exceptions to the referee's report have been overruled, an appeal will not lie until the motion is disposed of.-- City v. Brown, 4 Otto, 415; 3 Otto, 412. Plaintiff cannot by his proof make out a different cause of action from that set out in his petition.-- Merle v. Hascall, 10 Mo. 406; Murphy v. Wilson, 44 Mo. 313; Jones v. Louderman, 39 Mo. 287. The risks imposed by plaintiff upon the sureties without their knowledge or consent, and beyond the scope of the ordinary employments of a book-keeper, so altered the risks contemplated by them at the entrance into their obligation, that their liability upon the bond was wholly discharged.-- City of St. Louis v. Sickle, 52 Mo. 122; Blair v. Perpetual Ins. Co., 10 Mo. 560; The State to use v. Boon, 44 Mo. 262; Cochrane v. Stewart, 63 Mo. 428; The State to use v. Thomas, 19 Mo. 616; Allison v. Bank, 6 Rand. 204; Nolley v. Callaway County, 11 Mo. 463; Bowmaker v. Moore, 7 Price, 231; Miller v. Stewart, 9 Wheat. 680; Dedham v. Chickering, 4 Pick. 317; The State to use v. Sandusky, 46 Mo. 381; Bonar v. MacDonald, 3 H. L. Cas. 226; Whitcher v. Hall, 8 Dow. & By. 27; Smith v. United States, 2 Wall. 233; McMicken v. Webb, 6 How. 296; Leggett v. Humphreys, 21 How. 76; United States v. Boyd, 15 Pet. 208. “To receive a surety known to be acting upon the belief that there are no unusual circumstances by which his risk will be materially increased, well knowing that there are such circumstances, and having reasonable opportunity to make them known, is a legal fraud by which the surety will be relieved from the contract.”-- Franklin Bank v. Cooper, 36 Me. 179; 37 Me. 542; Evans v. Bremridge, 2 Kay & J. 174; Pidcock v. Bishop, 3 Barn. & Cress. 605.

PATTISON & DOOLEY, for respondent: All the parties against whom judgment was rendered must join in the appeal, or the proper steps taken to procure a severance.--Wag. Stats. 1064, 1065, sects. 5-13; Clifton v. Shelton, 23 How. 481; Hicks v. Gilliam, 4 Dev. 217; Moore v. McGuire, 26 Ala. 463; Lovejoy v. Irelan, 17 Md. 525; Cumberland v. Jeffries, 21 Md. 375.--A motion for a rehearing filed after exceptions to the referee's report have been overruled will not have the effect of suspending the judgment until its decision.--48 Mo. 37; Smith v. Crease, 2 Mo. App. 278; Foster v. Mackey, 4 Mo. App. 590; The State ex rel. v. Wickham, 3 Mo. App. 604. The sureties under the bond in question were not discharged by the additional employment of the book-keeper as teller.-- Rochester Bank v. Elwood, 21 N. Y. 88.

BAKEWELL, J., delivered the opinion of the court.

This action is upon a bond given by one Rodel as principal and the defendants as sureties, dated May 30, 1867. The penalty of the bond is $5,000, and it is conditioned that, whereas Rodel has been by the board of directors of the Home Savings-Bank of St. Louis appointed bookkeeper of said bank, and whereas said Rodel may from time to time by the said board of directors be continued and reappointed book-keeper of said bank, “now, if the said Emil G. Rodel shall well and truly and faithfully perform the duties of book-keeper of said bank for and during all the time he shall hold such office of book-keeper of said bank, and for and during all the time he may continue or act as such book-keeper of said bank, whether under the present appointment or until further reappointment, and shall and will well and truly and faithfully account for and render over to said bank all such money, goods, chattels, and other effects and things as may come into his possession or under his care or charge while in the service of said bank as such book-keeper, either under the present appointment or a future reappointment, and shall, while he continues in such service, either under the present appointment or any future reappointments, faithfully, and to the best of his ability, perform all trusts reposed in him, and all duties devolved on him by the laws of the land, or by any by-law, rule, order, or resolution of said board now existing or hereafter made, enacted, or adopted, not inconsistent with the laws of the land, then this obligation to be void; otherwise to remain in force.”

The petition alleges that Rodel was on May 30, 1867, the book-keeper of plaintiff, and continued to be such book-keeper from that date until August 1, 1872.

The breaches of the bond for which a recovery is sought are assigned as follows:--

“Plaintiff says that said Rodel did not well and truly and faithfully perform the duties of book-keeper as aforesaid, and that he did not to the best of his ability perform all the trusts reposed in him, and all the duties devolved on him by the by-laws, rules, orders, and resolutions of the board of directors of plaintiff; but that, on the contrary, he did, while in the service of said bank, falsely enter in the books thereof, on many different occasions, certain sums of money as paid out by said bank, which bad never in fact been paid out, and also neglected and failed to enter in said books certain sums which had been paid into said bank and which should have been so entered. Also that he did, on many occasions, fail and neglect to enter in the said books various payments of money made, and of sums received by said bank, and that he did, on many occasions, make erroneous and incorrect entries on said books.

Plaintiff says that by reason of said false, erroneous, and incorrect entries made as aforesaid by said Rodel, and by reason of his failure and neglect to make entries of payments made by, or money received by, plaintiff, plaintiff has been damaged in the sum of five thousand dollars. And plaintiff further states that said Rodel did not well, truly, and faithfully account for, and render over to said bank, all moneys that came into his possession and under his care and charge while in the service of said bank as said bookkeeper; but that he did falsely, fraudulently, and without authority, retain and convert to his own use, of the moneys belonging to said bank and coming into his possession or under his care and charge, the sum of five thousand dollars.”

And the plaintiff asks judgment for $5,000.

The answer avers that Rodel was appointed only for one year, and was not afterwards reappointed; and says that there was no breach of the condition of the bond during the first year; that afterwards the duties of teller were imposed on Rodel by plaintiff, without the knowledge or consent of the sureties; that the duties of teller are more difficult and onerous than those of a book-keeper, and that the discharge of these duties by Rodel exposed him to a greater temptation; and that defendants are therefore discharged, there being a variance from the contract. The replication denies that the duties of Rodel were changed.

On motion of plaintiff, supported by affidavit showing that the trial of the cause involved the investigation of a long account, the cause was, against the objection of defendants, referred to a referee to try the issues and report. The facts found by the referee cannot be more succinctly stated than they are in his own language, in his report, as follows:--

“I find from the evidence offered in this case that the plaintiff appointed Rodel as its book-keeper on the fifth day of June, 1867, and that the bond in suit was given to plaintiff July 22, 1867; that plaintiff did not employ said Rodel on the recommendation of the defendants, or at their request; I find that the defendants were each of them acquainted with the duties and services ordinarily required and imposed upon the book-keeper 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 book-keeper. I find that during the time of the alleged breaches of the bond by Rodel the plaintiff employed and used him as its teller, in which capacity he received and paid out the moneys of the plaintiff. I find that the ordinary duties of the book-keeper 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 plaintiffs, while as teller he handled it all; and that as teller he was afforded opportunities and exposed to temptation to take and appropriate to himself the moneys of plaintiff, which were not afforded him as book-keeper, 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 bank's teller are much more responsible, and a larger bond is required of him than in case of the book-keeper.

The losses sustained by the plaintiff by the reason of the errors and misconduct of Rodel consist of (1) losses by his act as book-keeper and (2) losses by his act as bookkeeper and teller. Upon the...