Maltby v. Shook
| Decision Date | 08 March 1955 |
| Citation | 131 Cal.App.2d 349,280 P.2d 541 |
| Court | California Court of Appeals Court of Appeals |
| Parties | M. Earl MALTBY, Plaintiff-Appellant, v. Charles J. SHOOK, Royal Machine Works, et al., Defendants, Roy W. Solomon and Robert K. Jasper, Defendants-Respondents. Civ. 20602. |
Gray, Glass & Allen, Gardena, for appellant.
Blek & Wilcox, Inglewood, for respondents.
Plaintiff appeals from a summary judgment in favor of defendants Solomon and Jasper and from the order denying his motion to set aside the judgment.
In his first amended complaint, which purports to state three causes of action, plaintiff Maltby alleged that he is the assignee of the rights of the Monterey Cafe, a partnership, and the lawful owner and holder of the 'within claim.' The first count alleges that Charles J. Shook, one of the defendants, was an employee of defendant Royal Machine Works, and at all times referred to acted within the course and scope of his employment. Upon information and belief, plaintiff further alleges that the Royal Machine Works gave Shook authority to endorse checks of which it was the payee and that plaintiff relied upon such authority and received and cashed a number of checks 'under the above mentioned belief;' and that there are more checks which were cashed by Shook whose amount was not yet ascertainable. The second count, after realleging the assignment to Maltby and Shook's employment by the Royal Machine Works, and that he acted within the scope of his employment, proceeds to allege, upon information and belief, that Shook 'fraudulently passed checks wherein Royal Machine Works was the payee; that * * * Shook had no authority to negotiate same; that because of said representations by * * * Shook and the reasonable reliance by plaintiff, the plaintiff was damaged in the sum of $7,277.51.' The third count again realleges the assignment and Shook's employment as previously recited. It then alleges that the defendant Royal Machine Works 'negligently, carelessly and unlawfully permitted their records to be falsified and they negligently, carelessly and unlawfully failed to ascertain that the checks involved herein were not in fact credited to them;' and that plaintiff was damaged in the sum of at least $7,277.51, although the full amount was not yet ascertained, as the direct and proximate result of such negligence, carelessness and unlawfulness.
An answer denying liability was filed for themselves alone by Roy W. Solomon and Robert K. Jasper, doing business under the fictitious firm name of Royal Machine Works. Thereafter, these defendants moved for a summary judgment. In support thereof, affidavits were filed by Solomon and Jasper and by two accountants, G. M. Elberson and Cecil Coe. The affidavits of Elberson and Coe were essentially to the effect that during the period in question they were in the employ of the Royal Machine Works and personally examined its books and records and that they found therein no evidence of irregularity, embezzlement or wrong doing on the part of Charles Shook. Elberson averred that not until September, 1953, when he was advised that the bank account of Royal Machine Works was overdrawn, did he ascertain that Shook had made false entries in the books by checking with customers of the Royal Machine Works.
The affidavits of Solomon and Jasper were virtually identical. They disclose that Solomon and Jasper are the sole owners of the Royal Machine Works, a partnership, and that Shook was their bookkeeper from May, 1952, to September, 1953, during which time his duties consisted in part of making entries of debits and credits in the partnership books; that in the course of his work, Shook received partnership mail containing checks payable to the Royal Machine Works, which checks he was authorized only to deposit in its bank account by placing a printed stamp on the back with the legend 'for deposit only to the account of Royal Machine Works;' and that Shook had no other authority to endorse checks. These affidavits further aver that neither Jasper nor Solomon ever represented that Shook had any authority to endorse or sign checks payable to the Royal Machine Works or that he had any authority other than that of a bookkeeper; that only the partners are authorized to give such authority; that after Shook left their employment, affiants for the first time discovered that he had been taking checks payable to the Royal Machine Works and endorsing and cashing the checks at gambling places and using the proceeds for his own purposes; that during Shook's employment, affiants employed accountants who checked the books of the Royal Machine Works about once a week and at no time did said accountants report any irregularity in the books; that affiants also examined these books from time to time and discovered no irregularity; that affiants were unable to discover Shook's unauthorized actions because he falsely entered debit memos on the books covering the amount of the checks that he took for his own purposes.
In opposition to the motion made by defendants, there was filed an affidavit executed by Dudley Gray, of plaintiff's counsel. Plaintiff himself did not file an affidavit. Gray's affidavit asserts that he has conducted an investigation of the facts surrounding plaintiff's cause of action and 'that set forth hereinafter are some of the facts which have been discovered by your affiant and/or his agents.' The body of the affidavit then recites:
'I
'That your affiant verily believes said Charles J. Shook, defendant, having been the agent of the defendant, Royal Machine Works and of the defendants, Roy W. Solomon and Robert K. Jasper, doing business as Royal Machine Works and that as agent, he had authority in excess of that stated in the affidavits supporting this motion and particularly that said Charles J. Shook had authority to sign for and on behalf of Royal Machine Works and to endorse and cash checks of said Royal Machine Works and to sign other formal documents of the Royal Machine Works; that said belief is based partially upon the notice of intention to chattel mortgage certain property of Royal Machine Works as reflected by such a notice attached hereto and marked Exhibit A.
'II
'That your affiant on or about the ___ day of December, 1953, took depositions of said Robert K. Jasper and Robert W. Solomon relative to the above entitled action and said depositions are attached hereto and marked Exhibit B and made a part hereof by way of reference; that said depositions, together with the affidavits of said Solomon and Jasper which are on file in support of this motion indicate that said Charles J. Shook was given authority by the Royal Machine Works to endorse and...
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...own senses. (Id. at p. 356, 110 Cal.Rptr.2d 272, 28 P.3d 34.) Plaintiffs do not analyze Lewis any further. In Maltby v. Shook (1955) 131 Cal.App.2d 349, 280 P.2d 541, the court found fault with a party who submitted the declaration of his counsel in opposition to a summary judgment motion, ......
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