Hawkeye Gold Dredging Co. v. State Bank

REED, District Judge

(after stating the facts as above). Most of the testimony is that taken in the trial of the law action and used upon this hearing by'agreement, and only the ultimate facts shown thereby and deemed material to a determination of the questions presented have been or will be stated.

By an amendment to its answer, filed upon the eve of the hearing, and after the. testimony was concluded, the defendant objects to the jurisdiction of the court upon the ground that complainant’s remedy, if any exists, is at law. But the remedy at law that will exclude the jurisdiction of equity must be as full, complete, and efficient to the ends of justice as the remedy in equity. The bill alleges in substance that complainant’s money was deposited in the defendant bank in the *257 name of complainant’s treasurer, that such treasurer was also the president and manager of the bank, and that through his wrongful acts he made checks for a large amount against his account as treasurer in favor of Byron B. Bliss, and then as president of the bank charged such checks to his account as treasurer and credited them to the account and overdraft of Bliss in the bank, well knowing that the money so credited to Bliss was in fact complainant’s, that the bank thus wrongfully converted complainant’s money so held by its treasurer to its own use, and the prayer is that complainant be decreed to be the equitable owner of the money so deposited in the name of its treasurer, that the application of said money by the bank to the credit of Bliss in his account with it be not allowed, and that the bank respond to complainant for the amount of such deposits. The complainant’s money having been thus deposited in the bank in the name of Miller, treasurer, the legal title to the deposit was in him, and the company could not maintain an action at law against the bank for the recovery thereof, especially as checks had been drawn against the account in the same name in which the deposit was made, which checks the bank had charged to the treasurer’s account and credited to that of Bliss. National Bank v. Insurance Co., 104 U. S. 54 , 26 L. Ed. 693 .

In that case the general agent of an insurance company deposited money of the company in the bank in his own name as general agent, the account being designated upon the books of the bank as follows:

“Dr. Central National Bank in account with.

A. H. Dillon, General Agent, Cr.”

There was a large balance in the bank to the credit of the agent in this account. The agent also had an individual account with the bank which had become largely overdrawn, and the bank sought to offset this overdraft against the amount so due him as agent. The insurance company brought suit in equity to recover the balance so standing to the credit of its agent. The bank challenged the jurisdiction of the court upon the ground that the company’s remedy, if any existed, was at law. In holding this objection to be not well taken the Supreme Court said:

“It is objected that the remedy of the complainant below, if any existed, is at law, and not in equity. But the contract created by the dealings in a bank account is between the depositor and bank alone, without reference to the beneficial ownership of the moneys deposited. No one can sue at law for a breach of that contract, except the parties to it. There was no privity created by it, even upon the facts of the present case, as we have found them, between the bank and the insurance company. The latter would not have been liable to the bank for an overdraft by Dillon, as was decided by this court in National Bank v. Insurance Company, 103 U. S. 783 , 26 L. Ed. 459 ; and, conversely, for the balance due from the bank, no action at law upon the account could be maintained by the insurance company.”

That case is not distinguishable from this except that in this the treasurer,- who was also the president and manager of the bank, had made his checks as treasurer upon the bank for the purpose of transferring the money to the credit of Bliss upon his overdraft, and so consented to such transfer, while in that case the agent did not assent to the appropriation by the bank of the funds of the insurance com *258 pany. But this difference only shows more clearly, if anything, the equitable jurisdiction of the court, for it is well settled that equity will afford relief to the real owner of property from its wrongful or fraudulent transfer by trustees or others holding the legal title thereto in a fiduciary capacity to one having knowledge of the trust character of the property. Oliver v. Piatt, 3 How. 333 — 400, 11 L. Ed. 622 ; Clews v. Jamison, 182 U. S. 461 , 21 Sup. Ct. 845, 45 L. Ed. 1183 .

The bill in this case alleges that the money deposited in the bank in the name of Miller, treasurer, etc., was in fact complainant’s and held by him in trust for it; that the bank so well knew and with such knowledge fraudulently applied it by means of Miller’s checks as treasurer to the credit of Bliss upon his indebtedness to the bank; that no money was actually paid by the bank upon such checks; and that their only purpose was to transfer the money of complainant from the account of its treasurer to the credit of Bliss in the bank. That the matters so alleged, if true, are grounds for relief in equity seems clear. Insurance Co. v. Bank, 104 U. S. 54 , 26 L. Ed. 693 ; Union Stockyards Bank v. Gillespie, 137 U. S. 411 , 11 Sup. Ct. 118, 34 L. Ed. 724 .

But if defendant deemed the complainant’s remedy, if any existed, complete at law, it should have challenged the jurisdiction upon-that ground before entering upon its defense; and not having done so the court will proceed to a decree without stopping to inquire if there might not also be a remedy at law, the subject-matter as alleged being of equitable cqgnizance. Kilbourn v. Sunderland, 130 U. S. 505 -514, 9 Sup. Ct. 594, 32 L. Ed. 1005 ; Tyler v. Savage, 143 U. S. 79 -95, 97, 12 Sup. Ct. 340, 36 L. Ed. 82 . The objections to the jurisdiction are therefore deemed to be untenable.

The testimony of Mr. Bliss has not been taken for the reason as stated by counsel that he is under guardianship for some mental disability and is incapable of giving it. The cause has therefore been submitted and must be determined without his testimony. The amount deposited with the bank to the credit of Miller as treasurer is not questioned, nor is it disputed that the deposits so made in fact belonged to complainant. Against his account as treasurer Miller drew the checks numbered 1 to 9, inclusive, as entered in the passbook, aggregating $37,081.03, which complainant contends are not properly chargeable to its funds. These checks were drawn by Miller in favor of Bliss upon warrants upon the treasurer of complainant issued by Bliss as secretary to himself individually. For convenience of reference these warrants may be classified as follows: (1) Those which show the purpose for which they were issued; (2) those which do not so show. Checks Nos. 3, 4, 7, and 9, aggregating $16,781.03, are for warrants of the first class, one of which warrants is as follows:

“$4,000. Iowa Falls, Iowa, 6/6, 1904.

“Hawkeye Gold Dredging Company, Limited.

“Treasurer of the Hawkeye Gold Dredging Company, Limited: Pay to B. B. Bliss-or order Four Thousand Dollars. On account of check No. 11,478 to Samuel Calvin.

“By order of the Board of Directors.

B. B. Bliss, Secy.” “No. 40.

*259 The other warrants of this class vary only in date, amount, and description of the checks of Bliss, or other purpose for which made. This class of warrants- was issued to reimburse Bliss for his individual checks drawn upon and paid by the bank for the purchase price of the Fraser river property, and for various other ¿bligations and expenses of complainant as testified by Miller, and by Mrs. Hamilton, the chief clerk of Bliss and bookkeeper of complainant, who drew all of these warrants under the direction of Bliss, some of which obligations were incurred before the incorporation of complainant. It is not disputed by complainant that the bank in good faith paid all of these amounts for Bliss, and that such payments increased his overdraft in the bank; and it satisfactorily appears that the overdraft as it stood August 29th will be increased to the extent of these checks of Miller to Bliss if they are not to remain credited thereon. Complainant does not dispute that these obligations were so paid by Bliss and the bank or that it has had the benefit thereof, but its contention is that it is not liable for the expenses incurred or obligations contracted by its promoters before the incorporation — citing Cook on Corporations, § 707 (2d Ed.) and note, Winters v. Hub Mining Co. (C. C.) 57 Fed. 287 , and other cases; that Bliss as secretary could not rightly draw warrants for the obligations incurred after its incorporation except upon orders or resolutions of its board of directors, which do not appear to have been made; and that its treasurer could not rightly draw his checks in payment of any of such warrants and credit them to Bliss upon his overdraft in the bank, because he, Miller, knew that this fund deposited in his name belonged to complainant and could not be applied to pay the individual overdraft of Bliss in the bank, unless properly authorized by complainant. It may be conceded that the manner in which Bliss effected the payment of these obligations was irregular, and that it should have been done only upon the order of complainant’s board of directors; but it was not morally wrong or fraudulent to reimburse Bliss or the bank for all of these payments, for complainant’s memorandum of association provides that the objects for which it is established are, among others:

“(bb) To procure subscriptions for tbe company’s capital and to pay brokerage, commission and other expenses in connection witb such subscription.”

“(qq) To remunerate any person or company for services rendered, or to be rendered, in placing or assisting to place or guaranteeing tbe placing of any of the shares in the company’s capital, or any debentures or other securities of the company or in or about the formation or promotion of the company or the conduct of its business, and to repay to any person or persons, or body or bodies corporate, any moneys advanced or paid or liabilities incurred in connection witb such formation or promotion of such company or the conduct of its business, or for the purpose of the acquisition of any property, real or personal whatever, for or for the benefit of such company, whether such moneys were advanced or paid or such liabilities Incurred or property acquired before or after the incorporation of the company, and whether or not such property was acquired by the company, and also to accept, take over, purchase or otherwise acquire in the name of the company any such property.

“(rr) To do all or any of the above things either alone, or in connection with others, and either as principal or agent and either by itself or any subcontractors, agents, or otherwise, and either in the Province of British Columbia, the Dominion of Canada, the United States of America, or elsewhere in British Dominions, or as may be determined by the company.”

*260 And the British Columbia’s Companies Act under which complainant is organized, and which is in evidence, provides:

“See. 4. Associations of persons for the acquisition of gain by any lawful means within the scope of this act may be formed according to the provisions-of this act, and any such company, the members, shareholders, and stockholders thereof, shall be subject to the conditions and liabilities, and be entitled to the rights and privileges imposed and conferred by this act.”

“Sec. 14. The memorandum of association shall be signed by each subscriber in the presence of, and be attested by, one witness at the least. It shall,, when registered, bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in the memorandum contained on the part of himself, his heirs, executors, and administrators, a covenant to observe all the conditions of such-memorandum, subject to the provisions of this act.”

The payment of all of these obligations contracted either before or after the incorporation of complainant is therefore clearly within the purposes and objects of the corporation, and it is liable therefor under its charter. In the authorities relied upon by complainant thepe was obviously no such charter provisions. It may also be conceded that the bank, through Miller as its president and managing director, was chargeable with notice that the money deposited to the credit of Miller as treasurer was the money of complainant and could not rightly be appropriated by the bank to pay the individual overdraft of Bliss, unless authorized by complainant. But the fact remains that the bank paid all of these checks of Bliss in good faith, and the complainant’s obligations have been discharged and those of Bliss to the bank increased to the extent of such payments. The payments were therefore in fact for the benefit of complainant, and it would be grossly inequitable to permit it to accept and retain such benefits and repudiate the warrants of its secretary and managing officer and the checks of its treasurer drawn to reimburse Bliss and the bank therefor. The complainant seeks relief in a court of equity; but, acting upon the maxim that “he who seeks equity must do equity,” courts will refuse to enforce a naked legal right, when to do so would be manifestly unconscionable, or the party demanding the same makes no offer on his part to do that which the plainest principles of justice require. Neblett v. McFarland, 92 U. S." 101, 23 L. Ed. 471 ; Kagy v. Independent District, 117 Iowa, 694 , 89 N. W. 972 ; Batelle v. Northwestern Cement Co., 37 Minn. 89 , 33 N. W. 327 ; Paxton Cattle Co. v. First National Bank, 21 Neb. 621 , 33 N. W. 271 , 59 Am. Rep. 852 ; Bell’s Gap. R. R. Co. v. Christy, 79 Pa. 54 , 21 Am. Rep. 39 -41; Low v. Railroad Co., 45 N. H. 375; and see Whitney v. Wyman, 101 U. S. 392 , 25 L. Ed. 1050 . It does not appear that Bliss is indebted to complainant otherwise than for these checks, and others to be hereinafter mentioned, issued to him by Miller, against which it might be entitled to offset its indebtedness or obligation to Bliss on account of such payments. No injury, therefore, can result to it if these checks are permitted to stand charged to the account of its treasurer and credited to that of Bliss, while the bank will suffer to the amount thereof if this is not permitted.

But checks Nos. 1, 2, 5, 6, and 8, aggregating $20,300, stand upon a different basis. These checks were drawn upon warrants of the second class above mentioned, one of which is as follows:

*261 “4,000.00 Iowa Falls, Iowa, 4/9, 1904.

“Hawkeye Gold Dredging Company, Limited.

Treasurer of the Hawkeye Gold Dredging Co., Limited: Pay to B. B. Bliss -or order Four Thousand Dollars. On account of-.

“By order of the Board of Directors.

“No. 96. B. B. Bliss, Secy.”

These warrants do not show for what they were drawn, except that the one for $7,000, upon which check No. 2 was made, recites that it is on account of “error in depositing with treasurer.” Mrs. Hamilton says that none of these warrants was to reimburse Bliss for any payments made on account of or for complainant. As to the one of $7,-000, she says that Mr. Lansing bought $3,000 worth of complainant’s capital stock, and she bought $1,000 worth from Bliss, and the $4,000 paid by them therefor went to the credit of Miller’s account as treasurer in the bank; that a Mr. Otterback had bought $3,000 worth of the stock of the Iowa Lillooet Gold Mining Company, another mining corporation of which Bliss was secretary and Miller treasurer, which amount was first erroneously credited to Bliss (not complainant), but was afterwards transferred to the credit of the Lillooet Company; that if the stock purchased by her and Lansing was stock in fact owned by Bliss, then $4,000 of Bliss’ money was erroneously credited to the. complainant’s account. Other than these she knows of no errors in the deposits to be corrected, and no other reason for this warrant of $7,000 or for any of this class of warrants.

It appears that Bliss was indebted to complainant on August 29th for about $16,000, and the only basis for this indebtedness appearing in evidence is these checks Nos. 1, 2, 5, 6, and 8, issued to him upon these warrants of the second class for like amounts. If, there fore, the $4,000 paid by Lansing and Mrs. Hamilton to the credit of the Miller account as treasurer in fact belonged to Bliss, as suggested by Mrs. Hamilton, then the aggregate of Bliss’ indebtedness to complainant on account of these warrants and checks would be $4,000 less than their total amount, or $16,300. The stubbook of warrants, defendant’s Exhibit No. 44, and the warrants themselves, show that other warrants of the first class were issued to Bliss prior to August 29th for office and other expenses and obligations of complainant to the amount of $252.25 for which no check seems to have been issued by Miller or paid by the bank. This amount, if not repaid to Bliss, would be a proper offset to that extent against his indebtedness to complainant, and would reduce such indebtedness to $16,047.75. Mr. Miller says that the indebtedness of Bliss to the complainant on August 29th was $16,077.65, but does not state how the exact amount was ascertained, and it does not definitely appear; that on that day Bliss made a loan for himself from the bank, through Mr. Thomas, its vice president and general manager, for that amount to pay this indebtedness, and for which Bliss gave the bank his individual note secured by separate deeds of his homestead and two farms. Thomas admits that he made a loan on behalf of the bank for this amount which he placed to the credit of Miller as treasurer, which is the credit item of $16,-077.65 shown in the passbook under date of August 29th, but he says the loan was made to the complainant and not to Bliss individually; *262 that Bliss a day or two prior to August 29th asked for a loan to himself for about $16,000, but that he (Thomas) refused it on account of Bliss’ overdraft in the bank, it then being upwards of $10,000; that after some conversation Bliss finally said the loan was for the complainant, that it contemplated using more money than it had on hand, and if it could obtain the loan it would be repaid in a short time; that he (Thomas) then made the loan to complainant for $16,077.65, and placed that amount to the credit of its treasurer, but at the same time took a check on the bank in the usual form in its favor for the same amount signed “Hawkeye Gold Dredging Co., Lt’d, by B. B. Bliss, Secretary, and H. C. Miller, Treasurer,” and the individual note of Bliss for the same amount due on demand as collateral; that the deeds of the farms were accepted as security for the overdraft of Bliss; that that of the homestead was not accepted and was later returned to Bliss. No obligation of complainant for this loan was taken by the bank other than this check signed by Miller and Bliss. The check was not entered upon any of the books of the bank, but the note of Bliss was entered upon the cashbook and in the bills receivable register as a bill receivable. Miller admits that he signed this check of $16,077.65 at the request of Bliss and the cashier of the bank, but says that he told the cashier, who drew the papers, that the check was of no value, and that his name would add none to it. There' is considerable testimony in regard to this transaction, some of which cannot be easily reconciled. It would serve no useful purpose to further review it, and it must suffice to say that a careful consideration of the whole thereof leads to the conclusion that Mr. Thomas is in error in his version of this transaction, and that this loan was made by the bank to Bliss individually to enable him to pay his indebtedness of that amount to complainant; that neither Miller nor Bliss was authorized to make a loan for the complainant; that the check signed by them was wholly unauthorized, and neither was ever ratified by complainant; that while Mrs. Hamilton knew that such a check had been made and so informed Mr. Lansing, one of the directors of the complainant, neither they, the president, Miller, nor any other officer of the complainant ever heard the transaction mentioned as a loan to it until Mr. Thomas so testified upon the trial of the law action. The complainant is therefore entitled to retain the credit for this item of $16,077.65, if it is to be charged with these checks Nos. 1, 2, 5, 6, and 8. But should this conclusion be erroneous, and it was found that this loan was in fact to complainant, and is offset by the check of Miller and Bliss for the same amount, the result would be approximately the same, for in that event these checks could not rightly be charged to complainant, for it is not shown that they were given for any obligation of the company, unless it be the obligation to return to Bliss $4,000 of his money erroneously credited to Miller as treasurer, or that it has had the benefit of them in any way whatever. The bank is chargeable with notice that the money deposited to the credit of Miller was in fact complainant’s, except it be this $.4,000,. and could not rightly be applied to the overdraft of Bliss unless so authorized by. complainant; and the burden is upon it to show such authority which it has not done. Insurance Co. v. Bank, 104 U. S. 54 , 26 L. Ed. 693 ; *263 Union Stockyards Bank v. Gillispie, 137 U. S. 411 , 11 Sup. Ct. 118, 34 L. Ed. 724 ; Bayne et al., Trustees, v. United States, 93 U. S. 642 , 23 L. Ed. 997 ; Lamson v. Beard, 94 Fed. 30 , 36 C. C. A. 56 , 45 L. R. A. 822; Home Savings Bank v. Otterbach (Iowa) 112 N. W. 769 ; Wheeler v. Home Savings Bank, 188 Ill. 34 , 58 N. E. 578 , 80 Am. St. Rep. 161 ; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268 , 17 N. E. 496 , 9 Am. St. Rep. 698 .

The bank cannot therefore retain credit for these checks unless it be to the extent of $4,000, paid into the account by Eansing and Mrs. Hamilton. This would make the result approximately the same as to omit the transactions of the loan entirely. By so doing the indebtedness of Bliss to complainant might be found to be $16,047.75, as before stated, only $29.90 less than the amount of this loan, a difference that cannot now be traced or located in the wilderness of figures introduced in evidence. But Bliss and the complainant fixed the amount of his indebtedness at $16,077.65 which for the purpose of this hearing will be accepted as correct.

The defendant contends that the failure of complainant to object to the checks entered in and returned with the passbook, and the bringing of the law action to recover the $16,077.65 only, estops complainant from now questioning the correctness ■ of any of the checks other than the one for $16,077.65, and in support of such contention relies upon Leather Manufacturing Bank v. Morgan, 117 U. S. 96 , 6 Sup. Ct. 657, 29 L. Ed. 811 . What would be a reasonable time in which to make the objection after receiving the canceled checks and passbook would of course depend upon circumstances, and it might well be held under this testimony that none of the directors of the complainant other than Miller and Bliss knew of the reason for making the checks aggregating $20,300 until after the commencement of the law action. But if the rule can be successfully invoked to estop the complainant, it should also estop the defendant from disputing the item of $16,077.65 which it charged to itself in the passbook without taking credit for the check of the same amount signed by Miller and Bliss, which it then held, or in some other manner informing complainant that it held such check against it. But in the view taken of these transactions as above indicated, this contention of defendant becomes immaterial, and it need not be further considered.

The conclusion, therefore, is that on August 29th, when the passbook was made up and balanced, the bank was indebted to complainant as therein shown in the sum of......................$42,234 87 September 16th, there was added to this................. 300 00

Making.........................................$42,534 87

From September 16th to 23d the complainant made 11 checks, which were paid by the bank, aggregating...... 13,327 15

Geaving a balance due complainant of............... 29,207 72 Of these 11 checks complainant questions only one for $600 to Mrs. Hamilton. But this was drawn and approved by the vice president and secretary of the complainant in the same manner that the other 10 were with one exception, and there is no more reason for not al *264 lowing it than there would be for not allowing the others. The defendant is therefore entitled to credit for these 11 checks.

.September 24th the complainant made its check for $13,130.07, which, was paid by the bank on presentation, thus leaving $16,077.65 due complainant, the exact amount of the loan to Bliss and credited to complainant on August 29th, which defendant seeks to withhold upon the unauthorized check of Miller and Bliss. This for reasons stated it may not do.

The complainant, therefore, is entitled to recover of defendant $16,-Ó77.65, with 6 per cent, interest thereon from September 24, 1904, and costs, and a decree and judgment may be entered accordingly.