"Count One.
"For its first cause of action against the defendant, plaintiff states:
"1. That it is a corporation duly organized and existing under and by virtue of the laws of the State of Maryland, and that it has an office in the City of St. Louis and is duly licensed to transact a general insurance business in the State of Missouri, and that in connection with its business it writes surety bonds and bonds such as are required of administrators and guardians
in connection with estates handled in the Probate Court of the City of St. Louis.
"2. That defendant is a corporation duly organized and existing under and by virtue of law and is engaged in the general banking and trust company business in the City of St. Louis, Missouri.
"3. That on and prior to the second day of July, 1931, one Benjamin F. Carpenter, Jr., was the guardian under appointment by the Probate Court of the City of St. Louis, Missouri, of John A. Oertli, Jr., and Emmet M. Oertli, both minors, and that as such duly appointed and acting guardian of said minors said Benjamin F. Carpenter, Jr., in compliance with the laws of the State of Missouri, on the 2nd day of June, 1930, as principal, together with the plaintiff, as surety, executed and filed in the Probate Court of the City of St. Louis, Missouri, wherein the said Benjamin F. Carpenter, Jr., was appointed the guardian of said minors, a bond in the amount of thirteen thousand eight hundred dollars ($13,800.00) to the State of Missouri for the use of the minors, respectively, conditioned upon the faithful discharge of his duties according to law.
"4. That thereafter an agreement was entered into between the said Benjamin F. Carpenter, Jr., as such guardian and plaintiff as surety and the defendant herein, whereby and whereunder the funds coming into the hands of said Benjamin F. Carpenter, Jr., as such guardian were to be deposited in the defendant's bank in the City of St. Louis, Missouri, in an account under the joint control of the said Benjamin F. Carpenter, Jr., as guardian of the said minors, and of this plaintiff, as surety upon the aforesaid guardianship bond, and whereby withdrawals of funds deposited in said account required the signature of plaintiff.
"5. That at the time that said agreement was entered into between the said parties the defendant herein well knew that all funds coming into the hands of the said Benjamin F. Carpenter, Jr., as guardian of said minors, could not be deposited in any account other than the said joint control account and that checks made payable to the order of the said guardian could not be cashed by said guardian or by any other person, but that said funds could only be deposited, invested and expended in accordance with the laws of the State of Missouri.
"6. That a check dated December 16, 1930, representing the proceeds of a certain insurance policy in the amount of ten thousand two hundred sixty-eight and 37/100 ($10,268.37) dollars, drawn by the Prudential Insurance Company of America, payable to the order of said Benjamin F. Carpenter, Jr., guardian of John A. Oertli and Emmet M. Oertli, share and share alike, was deposited by said Benjamin F. Carpenter, Jr., in his personal checking account with the defendant, and that thereafter said Benjamin F. Carpenter, Jr., proceeded to unlawfully convert said funds of the guardianship estate to his own use.
"7. That the said Benjamin F. Carpenter, Jr., was removed and his power as such guardian was revoked by an order of the Probate Court of the City of St. Louis on July 2, 1931, and that Alice Reed was duly appointed as the successor guardian of the said minors, and after the appointment of said successor guardian the said Benjamin F. Carpenter, Jr., was ordered by the Probate Court to account for all funds which came into his possession as the guardian of the said minors, and most particularly the sum of twelve thousand one hundred ninety-four and 2/100 ($12,194.02) dollars, which was found to have been the balance in his possession of all funds which had come into his hands after certain disbursements were made, and in which balance was included the said proceeds collected by him from the said Prudential Insurance Company of America.
"8. That the said Benjamin F. Carpenter, Jr., as such guardian, failed to account for said sum in accordance with the order of the said Probate Court, and that thereupon plaintiff had one of its agents and representatives, some time during the spring of 1932, call upon the defendant for the purpose of ascertaining whether or not the check dated December 16, 1930, made by the Prudential Insurance Company of America in the sum of ten thousand two hundred sixty-eight and 37/100 ($10,268.37) dollars and payable to the said Benjamin F. Carpenter, Jr., guardian of John A. Oertli and Emmet M. Oertli, share and share alike, had been deposited in the said joint control account, or in any other account, and that plaintiff's representative was informed by the defendant that no such deposit in said joint control account had been made, and plaintiff alleges that the defendant herein refused to make known
to the plaintiff whether or not the said Benjamin F. Carpenter, Jr., had any other account in the defendant bank than as guardian, or that he had an account as an individual, and refused to make known to him what deposits had been made to any individual account which he might have carried.
"9. Plaintiff further states that thereafter, as surety upon the aforesaid bond, it was called upon by the said successor guardian of the said minors to account for the balance which was found to have been owing by the said Benjamin F. Carpenter, Jr., and which was unaccounted for, and that thereafter, to wit, on July 15, 1932, plaintiff notified the defendant herein that it had information that the aforesaid check had been deposited by the said Benjamin F. Carpenter, Jr., in the defendant's bank, and that it had procured a photostatic copy of the said check, and plaintiff thereupon notified the defendant herein that it would hold said defendant liable for all losses which it might be called upon to pay on account of its obligation under the aforesaid surety bond and on account of the defendant having permitted the said Benjamin F. Carpenter, Jr., as the guardian of said minors, to have deposited said check in any account other than the said joint control account, and for any amounts withdrawn from any such deposit other than by check or order signed by plaintiff. Defendant herein thereupon informed plaintiff's representative that the said check had been deposited in defendant's bank by the said Benjamin F. Carpenter, Jr., to his individual account and that the said Benjamin F. Carpenter, Jr., had thereafter withdrawn from said deposit of ten thousand two hundred sixty-eight and 37/100 ($10,268.37) dollars the sum of four thousand fifty-one and 91/100 ($4,051.91) dollars and that there was a balance to the credit of said Benjamin F. Carpenter, Jr., in his said individual account, to which account the aforesaid check had been deposited, of the sum of five thousand nine hundred forty-eight and 9/100 ($5,948.09) dollars, and plaintiff alleges that this said balance of $5,948.09 was paid over to the aforesaid successor guardian under garnishment proceedings and that thereafter a proceeding was instituted by the said successor guardian against plaintiff as surety upon the aforesaid guardianship bond whereby and whereunder a judgment was entered against plaintiff, causing it to suffer a loss of four thousand four hundred eighty-four and 31/100 ($4,484.31) dollars, the amount found to have been owing and unaccounted for from the said Benjamin F. Carpenter, Jr., after the application of the aforesaid sum of $5,948.09 as a credit.
"10. That by defendant's aforesaid conduct defendant aided and abetted Benjamin F. Carpenter, Jr., in the unlawful conversion of four thousand four hundred eighty-one and 38/100 ($4,481.38) dollars belonging to the guardianship estate of John A. Oertli and Emmet M. Oertli, thereby causing the plaintiff as surety upon the bond of Benjamin F. Carpenter, Jr., to sustain a loss of $4,481.38.
"Wherefore plaintiff prays judgment against the defendant herein for the said sum of four thousand four hundred eighty-one and 38/100 dollars ($4,481.38), together with interest thereon from and after the 27th day of October, 1932, the date upon which the plaintiff herein was required to pay the said successor guardian, and also for its costs in this proceeding expended.
"Count Two.
"For its second cause of action plaintiff realleges and adopts paragraphs 1 to 9, count I, inclusive, and states that defendant was negligent and careless in the following particulars, to wit:
"Defendant was negligent and careless in permitting Benjamin F. Carpenter, Jr., to deposit in his personal account the check of the ...
