White v. German Nat'l Bank of Memphis

• Citation: 56 Tenn. 475
• Parties: A. J. WHITE v. THE GERMAN NATIONAL BANK OF MEMPHIS.
• Decision Date: 30 April 1872
• Court: Supreme Court of Tennessee

56 Tenn. 475

A. J. WHITE

v.THE GERMAN NATIONAL BANK OF MEMPHIS.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the Municipal Court, April Term, 1869. GEO. W. WALDRON, J.

WILSON & BEARD for appellant.

HARRIS & PILLOW for appellee.

MCFARLAND, J., delivered the opinion of the Court.

In October, 1866, Max Otten was appointed bookkeeper of the German National Bank, and gave bond, with one Warburg and A. J. White, sureties. The condition of the bond is, that Otten should faithfully discharge the duties devolving on him as bookkeeper, and truly and promptly account for all moneys, papers, securities, books, etc., which shall come into his possession, or be placed under his control as bookkeeper. This action was brought by the bank against White, one of the sureties, and it is alleged that the covenants in the bond were broken. The facts, which it is alleged the truth establishes, are, that Otten did not discharge his duty in keeping his own account upon the books--that he kept them falsely and fraudulently in this: that he failed to keep his own account in the proper book kept for that purpose, but secretly transferred the same to a book in which small accounts, called “ sundries accounts,” were kept; and by this means kept his account concealed from the cashier and other officers of the bank, and was therefore enabled to overdraw $1,077.40, which he did before it was discovered, and that he never made his account good.

For the defendant it was insisted that Otten transferred his own account, with other small balances in the accounts of others of the employees, to the “““ sundries account,” by the direction and with the permission of Mr. Griffin, the cashier, and for this the testimony of Otten is relied upon. This was the vital point in the case.

The plaintiff proved by Griffin, the cashier, that some time in February, 1868, he discovered that Otten had overdrawn his account, and had him called before a meeting of the board of directors to answer for it. And in that interview Otten stated that he had transferred his account to the “““ sundries account” in order to conceal the fact that he was overdrawing, and to mislead the officers of the bank, and by this means had overdrawn largely. At this time Otten was dismissed by the board.

This testimony was objected to by the defendant upon the ground that the statements of Otten, in defendant's absence, and made after the acts complained of, were...