Hughes v. First National Bank

Mr. Justice Paxson delivered the opinion of the court, October 19th, 1885. The single question presented by this record is whether the learned judge of the court below was correct in holding that the plaintiff’s claim was barred by the Statute of Limitations. The action was assumpsit, and to the defendant’s plea of non assumpsit infra sex annos the plaintiff replied specially that the defendant bank, in violation of the trust and confidence reposed in it, had converted and did convert certain bonds to the amount of $2,400 to its own use, and fraudulently and deceitfully neglected and refused to give information thereof, and kept the.plaintiff entirely ignorant thereof until about the first of January, A. d. 1877, less than six years before the commencement of this suit, when the said plaintiff accidentally discovered said concealment and fraud. It may be that in the origin of this transaction the bank was not responsible for the bonds. They appear to have been received for save keeping by B. F. Flenniken, who was the assis [432] taut cashier, as an individual transaction, and for the accommodation of the plaintiff. There is no trace of any authority from the board of directors to receive such deposits. But when Mr. Flenniken, as cashier, pledged the bonds for the debt of the bank to Ira B. McVay & Co., the matter became a transaction of the bank; the fraud of Mr. Flenniken became the fraud of the bank, and his concealment of the pledge became the bank’s concealment. The bonds were subsequently sold by McVay & Co., and the proceeds went to pay the defendant bank’s debts. The bank cannot retain the fruits of the crime and repudiate the fraud of its agent. No. authority is needed for so plain a proposition. The certificate of deposit bears date October 2d, 1871. The suit below was commenced February 18th, 1882. It was not until the month of April, 1876, that the plaintiff was informed that the bonds had been pledged and sold, and the proceeds credited to the bank. It is true the plaintiff called at the bank in 1874, and at several other times subsequently to get his bonds and take them away. But he was always put off with excuses; he was informed that the bonds had been sent to Pittsburgh for safe keeping. In the meantime the bank continued to pay him the interest, even after the bonds had been sold. All this was a fraud and concealment, well calculated to throw the plaintiff off his guard. Repeated promises were made to him bjr the cashier to get the bonds from Pittsburgh and return them. But they never came. Performance of the promise was evaded and fresh promises substituted. It may be that these were circumstances of suspicion, calculated to alarm a prudent man. If we concede this to be so it does not help the defendant bank. It cannot take advantage of its own wrong. Holding the plaintiff’s property and having fraudulently converted it to its own use, and concealed that fact from him, we will not be astute to hold the plaintiff to knowledge which he did not possess. The concealment of the fraud prevented the running of the Statute: Morgan v. Tener, 2 Norris, 305; Wickersham v. Lee, Id., 416. From April, 1876, to the commencement of this suit was less than six years. The jury should have been instructed that if the fraud was concealed from the plaintiff until April, 1876, the plaintiff’s claim was not barred by the Statute. The judgment is reversed and a venire facias de novo awarded.