Knobelock v. Germania Savings Bank

27 S.E. 962, 50 S.C. 259, 1897 S.C. LEXIS 47

• Court: Supreme Court of South Carolina
• Decided: August 21, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Jones:

Two actions, entitled as above, were heard together. These actions were brought to recover, in the aggregate, $7,728.48, with interest, from the Germania Savings Bank and the estate of Jacob Small. The decree below dismissed the actions as to the Germania Savings Bank, and the appeal is therefrom. The complaints, in substance, so far as material to state here, alleged that in February, 1891, Jacob Small, then being a director and president of the Germania Savings Bank, directed said bank to pay over to him, and did take from said bank, the sums of $2,000 and $5,728.48, aggregating $7,728.48, besides-interest, the property of the estate of William Knobelock, sr., of which estate said Jacob Small was the executor, and then intended to, and did, misappropriate and convert same- to his own use and not to the use of the said estate of William Knobeloch, sr., all with the' knowledge of the said bank and without the knowledge of the cestuis que trustent of said estate. Jacob Small was a director and president of the Germania Savings Bank, and “took a general interest in, and an active supervision over, the bank’s business” at the time of the transaction complained of. On the 31st day of December, 1890, there was on deposit in the Ger-mania Savings Bank $30,910.98 to the credit of Jacob Small and William Knobelock, Jr., executors of William Knobelock, sr., deceased. The coexecutor, William Knobelock, Jr., died in May, 1890, leaving Jacob Small surviving executor. In January and February, 1891, all of this fund, except $7,728.48, was duly paid to or set apart for the cestuis que trustent entitled thereto. Of this last mentioned sum to which the plaintiff’s ceshiis qite trustent were entitled, Jacob Small, on check in proper form, as executor, drew $2,000, February 7th, 1891, which was paid to him by the teller of the bank, whose duty it was to pay out money, who took Small’s receipt therefor, as executor, and on the 20th day of February, 1891, Small drew out in cash the remaining $5,728.48, which was paid to him by the same teller on Small’s check, as executor, and his receipt therefor. Small misappropriated this money, and on the 5th day of December, 1893, died. On the 5th day of February, 1891, the day before Small drew out the $2,000, the plaintiff, Jacob Knobelock, was duly appointed as cotrustee with Jacob Small. On the 7th February, 1891, Small delivered to the plaintiff a sealed envelope and said, “Jacob, put this in your box.” This envelope was opened after Small's death, and there was found therein the following paper: “February 7th, 1891. Due estate of William Knobelock, sr., $2,000 on the share belonging to Mrs. Fred. Ostendorff. (Signed) Jacob Small.” This lead to the discovery of Small’s breach of trust.

Under the pleadings the following issues of fact were submitted to a jury: “When Jacob Small, on or about the 28th day of February, 1891, drew out of the Germania Savings Bank of Charleston, S. C., $5,728.48, then on deposit in said bank to the credit of Jacob Small and William Knobelock, sr., did he draw the same with the intent and for the purpose of misappropriating and converting the same to his own use? 2. Did said bank, at the time said money was drawn out as aforesaid, have notice that Jacob Small was drawing the same with the intent and for the purpose of misappropriating and converting the same to his own use?” Similar issues were submitted in the action for $2,000. The jury in both actions responded yes to the first question and no to the second. No effort was made to set aside this finding of the jury. A decree was accordingly made, in which the Circuit Court concurred in the finding of the jury, and inter alia dismissed the complaint against the defendant bank.

The opinion of the Circuit Judge, beginning at folio 284, “Case,” and the charge to the jury, beginning at folio 213 and ending at folio 260, and the exceptions thereto, appear in the official report.

1 I. The findings of fact by the jury are conclusive, unless the Circuit Judge grant a new trial, according to the practice in other jury trials, or unless this Court remand for a new trial for error in the rulings or charge of the presiding Judge on the trial of the issues of fact by the jury. Sec. 274a, Code of Civil Procedure. This Court has no jurisdiction to review findings of fact, even in chancery cases, where the facts are settled by a jury, and their verdict is not set aside. Constitution 1895, art. 5, sec. 4.

2 II. Such findings of fact by the jury not set aside being conclusive on the Circuit Court, exceptions that the Circuit Judge should have found facts inconsistent with the facts found by the jury are not tenable.

3 III. Did the Circuit Judge commit error in his rulings and charge to the jury, for which this Court may remand for a new trial? The 6th, 7th, 8th, 9th, and 10th exceptions seek to point out such error. 1. The 6th exception complains of the modification which the Circuit Judge made to plaintiff’s sixth request to charge. Reference should here be made to the sixth request to charge, the remarks of the Judge in connection therewith and the sixth exception, all of which are too lengthy to repeat here. This request to charge was defective in not distinguishing between the act of Jacob Small, officially, as agent for the bank, and the act of Jacob Small, as a depositor in said bank, acting for himself. The Circuit Judge correctly pointed out this distinction and qualification, and his language in connection therewith was fully warranted by the decision of this Court in Knobelock v. Bank, 43 S. C., 240. In so far as this exception complains of mere failure to charge, we have several times said that a mere failure to charge a specific proposition in the absence of a request therefor is not reversible error. As a matter of fact, however, the Circuit Judge did in another place charge practically as appellant complains he should have done, for he expressly charged as follows: “In other words, did the bank know, or have reasonable grounds for knowing, that Small intended and purposed to misappropriate and convert the money to his use? If it did not actually or constructively know that such was his intent and purpose, was the act of Small committed under such circumstances as should reasonably have put the bank on inquiry, and would such inquiry, if pursued, have reasonably led to such information as would have prevented the drawing of the money by Small?”

4 2. The 7th exception alleges error in the refusal to charge plaintiff’s 8th request to charge. This request to charge, as we understand it, was that if Small dealt with the bank as to this deposit ostensibly as a trustee, but secretly as an individual, his knowledge of his own fraudulent intent, with reference to this deposit, is imputable to the bank of which he was president. We are unable to see the merit of this distinction. The question was not whether Small was acting for himself as trustee, or for himself as an individual, but whether, in the transaction of drawing out the deposit, he was in any way acting for the bank. Knowledge of Small’s fraudulent intent with reference to the deposit was not imputable to the bank, unless, in the particular transaction of paying out and receiving the deposited money, Small acted for the bank. If Small acted ostensibly as trustee or executor, but secretly for himself as an individual, then clearly he did not in that transaction represent the bank.

5 3. The 8th exception complains of the refusal of plaintiff’s ninth request to charge. This request to charge was ambiguous. Does it mean, “if the jury believe that the bank through Small, its president, knew that the fund in question * * * was about to be misappropriated by Jacob Small, &c.?” or does it mean, “if the jury believe that the bank through Small, its president, knew that the fund in question was held by Jacob Small, surviving executor, for the ceshiis que trustent, and [if the jury believe] that it was about to be misappropriated by Jacob Small, &c.?” It was possible for the jury to believe that Small intended to misappropriate the fund, but that the bank did not know of that intention, as their findings show they did. The Judge evidently understood the request in the latter sense indicated above, for he said: “That would be to make the bank executor of the estate, devolving upon the bank all the duties of the executor. * * * The only ground upon which the bank could be held liable would be some breach of trust, as I have explained to you. I cannot charge that proposition in that form.” It is clear that if the only knowledge, actual or imputed, which the bank had, was that the deposit was held by Small as trustee for certain ceshtis que trustent, it would not be liable for honoring the trustee’s checks in proper form. Under such circumstances, the bank had the right to assume that the trustee was lawfully performing his duty, and was bound to honor its customer’s check in proper form. Gary v. National Bank, 26 S. C., 550; Knobelock v. Bank, 43 S. C., 240. It is not error to refuse an ambiguous request to charge. But, besides this, the request to charge, if understood in the sense most favorable to appellant’s view of the law, was inapplicable to the issues before the jury. The request related to the application of the law by the Judge to the facts found, and did not relate to the law to govern the jury in their findings of fact.

6 4. The 9th exception charges error in modifying plaintiff’s 11th request to charge. This request to charge is faulty in at least two particulars: (1) To have charged the jury “that they are not limited alone to the knowledge of Jacob Small, obtained by him as executor, &c.,” as requested, would have been to have charged in effect that in determining the question whether the bank had notice of Small’s fraudulent intent, the jury should consider the knowledge of Jacob Small as executor. The real question was whether in the transaction under consideration Small was acting as agent for the bank. The bank is presumed to know what its president knew as its agent, but. not what Small knew as executor. (2) The charge requested assumed as a fact that there was testimony as to “the knowledge of the other officers of the bank, circumstances occurring within their knowledge.” The Judge, instead of refusing this request absolutely, as he might properly have done, attempted to relieve the proposition presented of some of its errors, by adding, “Provided, that the testimony satisfies you as a jury that Small was acting officially for the bank in the transaction and not acting as depositor drawing on his deposit.” This modification was not erroneous. The Circuit Judge did not mean to exclude, and did not exclude from the jury, consideration of any testimony that might be in the case concerning the knowledge of the bank obtained through other officers than its president; for, as shown already in the discussion of the 6th exception, the jury were clearly instructed to consider whether the act of Small was committed under such circumstances as should reasonably have put the bank on inquiry. Besides this, he had already, at plaintiff’s request, charged that “knowledge brought home to the agent of the corporation possessing authority to act, and acting in the matter to which the notice relates, is the strongest case for charging a corporation with notice of matter known to its agents,” in accordance with the decision in Webb v. Graniteville Manfg. Co., 11 S. C., 408. The modification of an erroneous request to charge which frees it from some of its fault, is not reversible error at the instance of the party preferring the request, even though the charge as modified be not faultless.

7 5. The 10th exception relates to the response of the Circuit Judge to the 9th request to charge on the part of the defendant bank. The request to charge was as follows: “That knowledge of an agent of a corporation or other principal, while engaged in a fraud for his own benefit, can not be imputed to such corporation or other principal.” In response to this request the Judge added, “Unless also the corporation or the principal is benefited by the fraud, in which case the corporation or other principal would be liable to the extent of its benefit received from the fraud.” The last clause of this charge, so far as it relates to the extent of the liability of the principal participating in the profits or the fraud of the agent, had nothing to do with the issues of the fact before the jury, and, therefore, whether erroneous or not, could not have been prejudicial, and so it will be eliminated from the consideration here. The question remains whether it was error to instruct the jury, “That knowledge of the agent of a corporation or other principal, while engaged in a fraud for his own benefit, can not be imputed to such corporation or other principal, unless also the corporation of the principal is benefited by the fraud.” This charge standing alone might need some qualification or explanation, but when considered, as it must be, in connection with the whole charge, it is not erroneous. Just previously the defendant bank had requested the Judge to charge, “7. That in order to charge a bank with notice of the facts of which its president or other officer has knowledge in reference to a transaction, he must have acted in the transaction on behalf of the bank,” to which the Judge added, uif he was acting either wholly or partiallyfor the bank.” When, therefore, he qualified the request under consideration, he meant to correct it in the same particular. The expression, “knowledge of an agent of a corporation or other principal, while engaged in a fraud for his own benefit,” without explanation, might have been supposed by the jury not to exclude any participation by the principal in the profits of the fraud; hence the Judge, to avoid such impression, added the qualifying words, thereby making it clear to the jury that knowledge of an agent while engaged in a fraud for his own benefit, in which the principal is not in any way a participant, can not be imputed to the principal. Participation by the principal in the fruits of the agent’s fraud is not the test whether the agent’s knowledge is imputable to the principal, but it affords evidence on the question whether the agent in the fraudulent transaction was acting within the scope of his agency, previously authorized or subsequently ratified, which is the test.

The Circuit Court having committed no error in his rulings on the trial of the issues of fact before the jury, such findings are conclusive here. It is established, therefore, in this case, (1) that Small drew out the said deposit in the defendant bank with intent to misappropriate it and convert it to his own use; (2) that the bánk, at the time the money was drawn out, had no notice of Small’s fraudulent intent. This negatives-both actual and constructive notice. Under the issues presented and the charge of the Judge, the jury, in reaching their conclusion of the second issue, necessarily determined that Small, when he drew out the deposit, was 'acting for himself in his character as depositor, and in no way for the bank. Hence it follows that the bank was in no wise concerned with Small’s breach of trust as executor, and the complaint against the bank was properly dismissed. The decree and opinion of the Circuit Court is not only free from error, but is commendable for its lucid exposition of the law of imputed knowledge as applicable to the case. The principles announced are well supported by the authorities; by the text books. See Story on Agency, sec. 140; Angell & Ames on Corporations, §§ 308, 309; Cook on Stockholders, 3 ed., vol. 2, § 727; Morse on Banking, §§ 104, 317; Eng. & Am. Ency. Law, vol. 1, p. 423; by the law of England, see Kennedy v. Green, 3 Myl. & K., 699; Espin v. Pemberton, 3 DeGex & J., 547; In re European Bank, 5 Ch. App., 358; In re Marseilles Extension Ry. Co., 7 L. R. Ch. App., 161; Rolland v. Hart, 6 Ch. App., 678; Cave v. Cave, 15 L. R. Ch. Div., 639; by the Court of the United States, see Boydin v. U. S. (The Distilled Spirits), 11 Wall, 356; Bank of Sheffield v. Tompkins, 57 Fed. Rep., 20; Western Mortg. & Investment Co. v. Ganzzer, 63 Fed. Rep., 647; Hudson v. Randolph, 66 Fed. Rep., 216; Thomson Houston Electric Co. v. Capital Electric Co., 65 Fed. Rep., 341, 12 C. C. A., 643; by many of the State Courts, see the following cases: Frenkel v. Hudson, 82 Ala., 158, 60 Am. Rep., 736; Innerarity v. Bank, 139 Mass., 332, 52 Am. Rep., 710; Wickersham v. Chicago Zinc Co., 18 Kan., 481, 26 Am. Rep., 54; DeKay v. Water Co., 38 N. J. Eq., 158; Winchester v. R. R., 4 Md., 231; Bank v. Burgwyn (N. C.), 14 S. E. Rep., 623. See, also, note to Fairfield Bank v. Chase, 39 Am. Rep., 331; note to Bank of Pittsburg v. Whitehead, 36 Am. Dec., 188; note to 8 Fed. Rep., 10; and note in 24 Am. St. Rep., 228. The latest utterance on the subject we have seen is from the Supreme Court of Pennsylvania, 37 Atl. Rep., 550, as follows: “The rule that knowledge or notice on the part of the agent is to be treated as notice to the principal, is founded on the duty of the agent to communicate all material information to his principal, and the presumption that he has done so. But legal presumptions ought to be logical inferences from the natural and .usual conduct of men under the circumstances. But no agent who is acting in. his own antagonistic interest, or who is about to commit a fraud by which his principal will be affected, does, in fact, inform the latter, and any conclusion drawn from a presumption that he has done so is contrary to all experience of human nature. If it be urged, as in some cases, that the principal, having put the agent in his place, should, as a matter of public policy, be held answerable for all the-latter does, a sound answer is suggested by the Court in Allen v. Railroad Co., 150 Mass., 200, 22 N. E. Rep., 917, that an independent fraud committed by an agent on his own account is beyond the scope of his employment, and bears analogy to a tort wilfully committed by a servant for his own purposes, and not as a means of performing the business intrusted to him by his master.” The rule imputing to the principal the agent’s knowledge is by some courts based upon the reason that the agent is substituted for the principal, has legal identity with the principal, and under the operation of this reason, the principal is more inflexibly held bound by the agent’s knowledge. Other courts, by far the majority, including our own, base the rule on the ground that it is the duty of the agent'to communicate to his principal all knowledge which he possesses material to the principal’s business, and the presumption that he has done that duty. Under the operation of this reason, what are sometimes called exceptions or qualifications to the rule have grown up. For example, an agent is not presumed to have communicated to his principal professional confidences received in representing a third person (Akers v. Rowan, 33 S. C., 473), or knowledge acquired while acting for himself or for a third person and not for the principal (same authority), or where the knowledge is such that, according to human nature and experience, the agent is certain to conceal, or where the agent is acting in an adversary relation to the principal, or meditates a fraud against his principal or some third person in his own interest which would be defeated by disclosure. This last qualification is recognized in Raply v. Klugh, 40 S. C., 151, in which note to 39 Am. Rep., 331, is referred to. But what are sometimes spoken of as exceptions to the rules are not so much exceptions as they are facts or conditions which render the rule inapplicable. “In the relation of the principal to a third party, the undisputed rule exists, that notice to the agent is notice to the principal, if the agent comes to the knowledge of facts while he is acting for the priacipaC (italics ours). 1 Enc. Raw, 419. See, also, Akers v. Rowan, 33 S. C., 473, where the Court said: “The Circuit Judge overlooked the qualifications to the admitted general rule, that notice to the agent is notice to the principal. Sloan, though he was at the time the solicitor of the bank and one of its directors, did not acquire knowledge of the fact that suits were commenced against Robbins while acting in either of those capacities''' (italics ours). Speaking of the last mentioned case, this Court, in Raply v. Klugh, 40 S. C., 151, said: “The bank was exonerated from responsibility of the knowledge of its agent (solicitor and director), because such knowledge of its agent was not acquired while engaged in business for the bank, but was acquired while acting as the solicitor of Robbins himself'' (italics ours). In the case of Bickley v. Bank, 39 S. C., 294, the Court sustained the following charge by the Circuit Judge: “If the president of the bank commits a fraud relative to a subject that does concern his duty to the bank in dealing with strangers and other persons having business with the bank, the corporation will be liable to such third person or persons for such acts and misdeeds of its president and agent.” This last case also shows that in the absence of evidence to the contrary, it is not the duty of the president of a bank to receive deposits. Erom this it would seem to follow that in .the absence of evidence to the contrary, it is not the duty of a bank president to pay out deposits. In the case at bar, although the president was shown to have a general supervision over the bank’s business, it was shown to be the special duty of the teller to pay out the bank’s money. In the case of Bank of Charleston v. Bank of South Carolina, 13 Rich. Raw, 291, it was held that the plaintiff could not recover of the defendant money which defendant’s teller, without authority, borrowed from the plaintiff’s bank from the teller thereof, who had no authority to lend money of the batik, which money defendant’s teller secretly placed in his till, to escape detection for having "abstracted and fraudulently used the money of his bank, which borrowed money became mingled with the money of the defendant bank, and was afterwards used by the defendant’s teller for his bank in current transactions. The Court said: “Is the bona fides of the defendant bank in the transaction subject to just suspicion? On this head nothing has been imputed besides the constructive notice to the bank, which has been supposed to arise from the knowledge of the fraud possessed by its officer, Miller. But this knowledge was not acquired or used by Miller in the course of his agency as teller. It was involved in his own misconduct, and served only his own unworthy purpose (italics ours). It would be as just to estop the plaintiff by the guilty knowledge of Johnson (its teller) as to affect the defendant by the secrets shut up in Miller’s breast.”

So that the. final test of the case is, was Small, in drawing out the money in question, acting within the scope of his agency as president of the bank? This question, as said before, has been conclusively established by the jury under the charge of the Judge in the negative. But if it were not so, it is manifest that he was not so acting; (1) it was not the duty of Small as president to pay depositor’s checks, and according to the evidence the bank performed such acts through its teller as a rule, and in this particular case payment was made by the teller; (2) Small in drawing out the deposit was acting as crediting depositor in adversary relation to the bank paying as debtor; (3) there was not the slightest evidence that the bank had any interest or profit in the transaction, except to discharge its duty, to honor its customer’s checks in proper form; (4) Small’s secret and fraudulent purpose to misappropriate the money was locked in his own breast, and could not have been disclosed without defeating his scheme to convert the money to his own use. Exceptions overruled.

The judgment of the Circuit Court is affirmed.