Rechtscherd v. Accommodation Bank of St. Louis

• Decision Date: 31 October 1870
• Citation: 47 Mo. 181
• Parties: ADAM RECHTSCHERD, Plaintiff in Error, v. THE ACCOMMODATION BANK OF ST. LOUIS, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 181

ADAM RECHTSCHERD, Plaintiff in Error,

v.THE ACCOMMODATION BANK OF ST. LOUIS, Defendant in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to St. Louis Circuit Court.

Casselberry, for plaintiff in error.

Krum & Decker, for defendant in error.

The employer has the right to say how his business shall be transacted, and the rules which he lays down for the government of that business must be observed by the employees unless they are in violation of law or morals. (Switzer v. Connet, 11 Mo. 89.) The employee who receives a reward is bound to observe with care and diligence the interests of his master or employer, and must exercise the same vigilance and attention his employer would have done. (1 Blackst. Com. 428, notes; Cathir v. Bell, 4 Campb. 183.) The agent must strictly follow the instructions of his employer. (2 Kent's Com. 618; Hay v. Stone, 7 Hill, N. Y., 128.) It will not aid the agent that he intended no injury to his principal, nor even that he intended the act to be a positive benefit to him. The question in such cases is not whether the agent acted from good motives and without fraud, but whether he acted in conformity with his instructions. (Mavella v Barry, 3 Cranch, 415; Paley on Agency, 2, 3; Sto. Agency, 226; Bliss v. Arnold, 8 Verm. 253; Wilson v. Wilson, 26 Penn. St. 394; Switzer v. Connet, 11 Mo. 89.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action on a certificate of deposit for $2,600, which defendant, by its answer, admits to be due.

Defendant, in its answer, sets up a counter-claim, and states that before the plaintiff's action accrued, the plaintiff, in consideration that defendant would receive him into its employ as collector and agent and pay him a salary of one thousand dollars per annum, promised and agreed with defendant that he would carefully and diligently attend to his duties as such collector and agent, and safely and prudently care for and deliver over and account for to defendant any moneys which he might receive into his custody as such agent and collector; and that defendant, relying upon such engagement and promise, did receive the plaintiff into its employ as collector and agent, and did pay him his said salary, and did in all things perform all the terms and conditions of said contract on its part to be performed, but that defendant, not regarding his said engagement and employment, failed and refused to account for and deliver a large sum of money, to-wit: the sum of $2,983.06, the money of the defendant, which came into his care and custody while in the employment of defendant as such collector and agent, which sum of money, the property of the defendant, was, through the fault and neglect of the plaintiff, wholly lost to the defendant.

The plaintiff, in his replication, does not deny the terms and conditions of the contract and employment as set forth in the answer, but avers that he has in all things complied with the same. He denies that the sum alleged in the answer, or any other sum, was lost to the defendant through his fault or negligence, and alleges that the money was, without any neglect or fault on his part, taken from him by thieves, robbers, and other persons, whilst he had the same in his possession and was taking extraordinary care of the same for and as the agent of the defendant, and therefore he was not liable for the same. The cause was tried at Special Term before a jury, who, after hearing the evidence and being instructed by the court, rendered a verdict for the plaintiff. Upon appeal to General Term the judgment was reversed and the cause remanded for a new trial, and from this judgment the case is brought here by writ of error.

If the money was taken from the plaintiff by thieves or robbers when he was using ordinary care and guilty of no negligence, he was clearly not liable. But this was a question of fact for the jury to determine upon proper...