Merrill v. Superior Court

SCHMIDT, J.,

pro

tem.

By the third amended complaint filed in the respondent court by more than a dozen corporations and copartnerships joined as plaintiffs against the petitioners, Inez A. Merrill and Thomas E. Merrill, wife and husband, it was alleged that petitioner Inez A. Merrill was employed jointly by the plaintiffs “as their confidential agent and fiduciary to take full charge and control of offices which they were then and there occupying in common, and of their books of account and funds, to keep said books as separate books of account and to keep said funds in the

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separate bank accounts of the various parties so employing her”; it being her duties “to receive and collect the sums of money due or payable to each of the plaintiffs; to indorse for deposit any checks received by any of the plaintiffs and to deposit same in the account of the designated bank for, credit to the proper plaintiff employer and to enter same in the separate books of account and to faithfully and fully account for all such funds to each of said separate plaintiffs”.

It was also alleged that during her.fiduciary employment as manager, agent and in a fiduciary capacity she, without the knowledge or consent of any of said employers, committed .wrongful acts and malfeasances in her acts of employment in relation to moneys collected by her; in the distribution thereof; in the deposits, checks, bank accounts and in her duties to her said joint employers as particularly set forth in the complaint.

It was further alleged that said petitioner Inez A. Merrill and her husband, Thomas E. Merrill “intentionally, knowingly, wilfully and wrongfully have used and have intentionally, knowingly, wilfully and wrongfully converted to their own use, large sums of money belonging to” the said joint employers of Mrs. Merrill, and with the said moneys petitioners purchased various parcels of real estate the description of nineteen of which is set forth in the complaint, and that the title to same was taken in the name of petitioner Thomas E. Merrill., The complaint prays for an accounting and the proper distribution of the funds to be accounted for to the respective plaintiffs.