Henry Cowell Lime & Co. v. Santa Cruz County National Bank

TYLER, P. J.

— The above two cases were tried together before a jury in the superior court of Santa Cruz County. The causes of action in both are identical in form, although different amounts are involved therein. In the action against the Santa Cruz National Bank it is alleged that one A. S. T. Johnson was employed by plaintiff as a bookkeeper with authority to collect money and checks due and owing to plaintiff from its various customers in the city of Santa ■Cruz, hut that he had no authority whatsoever to indorse or cash cheeks payable to plaintiff; that Johnson, acting in

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such capacity for plaintiff, collected from various persons named in the complaint, for the use and benefit of plaintiff, certain cheeks payable to it; that the makers of said checks each had a commercial deposit in said bank and that all said checks were drawn against such deposits respectively; that Johnson upon collecting the same at various times indorsed each of them as follows: “H. Cowell Lime and Cement Co., per A. S. T. Johnson, Mgr.,” and cashed the same at the defendant bank; that Johnson retained the proceeds of these checks, used the same for his own purposes, and never turned the proceeds or any part thereof over to plaintiff; that plaintiff never had any deposit in said bank; that upon cashing such checks defendant bank stamped the same “Paid,” with its name and the date thereon, and thereupon charged the amounts thereof to the account of the respective makers thereof; that the indorsing and cashing of the checks by Johnson were without the knowledge or consent of plaintiff and were entirely without authority; that upon discovery that Johnson had so indorsed and cashed the checks plaintiff made demand upon defendant that it uppay to it the amount thereof, but that the bank has refused to do so and that Johnson has never paid the same to plaintiff. That the cheeks so indorsed and paid were ten in number, aggregating the sum of $1,007.44.

The allegations against the Farmers and Merchants National Bank were the same as above, excepting that the checks were five in number, aggregating the sum of $965.83 and were drawn by persons having accounts in this particular bank. In both cases the wrongful indorsement and cashing of each check- is made the basis of a separate count. There is also a common count for money had and received covering each check. Defendants answering, admitted that each of the checks referred to in the complaint was drawn, made payable to plaintiff, collected, indorsed and cashed by Johnson as alleged; that the respective makers of each of said checks had a commercial deposit in the defendant bank upon which said cheek was drawn; that each of said checks was cashed by such bank respectively and charged against the maker’s deposit and in due course of business returned by such bank to the respective makers thereof; that plaintiff made written demand upon defendants for the repayment of the amounts of these cheeks, and that defendants refused the