Rauch v. Brunswig

BROADDUS, P. J. This is a suit for conversion. In October, 1907, the respondents were in the grain business at Lamoni, Iowa, and the South Park Grain Company, a corporation, was in the grain business at St. Joseph, Missouri. • The appellant, Brunswig, was president and manager of the South Park Grain Company during the times herein mentioned. The respondents shipped a car load of «oats from Blythedale, Missouri, to the South Park Grain Company, and while it was in transportation a part of the grain was lost. The latter company notified the respondents of the loss and requested them to send certified weights of the car of grain and that it would file a claim for the loss with the carrier for the benefit of respondents. [370] The respondents furnished the weights and the claim was filed by the South Park Company and the carrier paid to the company the amount of the claim in the sum of $128.08. . It was shown appellant was the sole manager of the company, and that,Charles A. Clark was its clerk. The claim was paid by the check or voucher of the carrier, payable to the company. Clark personally handled the check or voucher and the proceeds were deposited with the First, National Bank of St. Joseph, on the same day, Clark was asked: “What conversation did you have with Mr. Brunswig about remitting to the plaintiffs for that claim? A. I mentioned to Mr. Brunswig that the claim had been paid and asked him if I should make a check for the amount. Q. What did he say? A. He replied to wait awhile.” This colloquy occurred two or three days after the claim had been collected. Mr. Clark stated that he did not think Brunswig knew when the claim was collected. It was shown that the bank had a mortgage on all the property of the company and that after the satisfaction of its claims there was nothing left to pay other creditors. Clark was asked this question: “Now, state to the court what your knowledge is, and your recollection as to how this money got out of the bank. A. It was checked out. Q. Who checked it out? A. I usually made out the check, and Mr. Brunswig signed them. Q. So Mr. Brunswig checked out this money? A. Yes, sir.” On cross-examination he stated that the money was checked out for the benefit of his company. It was further shown that the collection was made some time prior to said mortgage. Clark stated that he did not think anything was paid to the bank out of the money on deposit. Clark was the only witness Avho testified. At the close of his testimony appellant asked the court for a demurrer to respondents’ case, which was refused. No other instructions were asked. The court sitting as a [371] jury found for plaintiffs and rendered judgment for the amount claimed. Defendant, Brunswig, alone appealed. Appellant's position is, that he cannot be compelled to account for conversion of the money unless it was shown that it was at some time under his personal control or in his personal possession; and that mere nonfeasance will not answer and “that nothing short of active participancy in a wrongful act intendedly and directly operating to the .prejudice of the party complaining will give origin to individual liability.” We cannot concede that unless the fund in controversy was in the personal possession of appellant he would not be liable, but we do concede that he would not be liable unless it was subject to his controb And it must be further conceded that he would not be liable for a mere non-performance of his duty. [Bank v. Brunswig, 107 Mo. App. 401; Fusz v. Spaunhorst, 67 Mo. 256.] The evidence shows that notwithstanding he did not handle the fund in person in the first place, yet when it was deposited it was under Ms exclusive control, as he was the sole manager of the corporation. He knew that the money did not belong to his corporation but notwithstanding such knowledge, he applied it to the payment of its debts. This was an act of conversion. But we, are met with the argument that he was acting in the capacity of agent and not personally liable, therefore, he was not guilty of conversion. If such is the law, the agent of a corporation could shield himself from liability for almost every kind of wrong, provided he was acting in the capacity of- agent, notwithstanding the circumstances would render the principal liable for the tort. It is held that the agent is liable to a third party for misfeasance and for acts of positive wrong. [Carson v. Quinn, 127 Mo. App. l. c. 533, citing Mechem on Agency, section 572; Lottman v. Barnett, 62 Mo. 159; Baird v. Shipman, 132 Ill. 16.] It is immaterial whether the appellant was acting as agent or not, the conver [372] sion was a tort, and he rendered himself liable by reason of his tortuous act. [Hamlin v. Able, 120 Mo. 188.] In Bank v. Brunswig, supra, it was disclosed that the agent was acting in good faith. The appellant is not entitled to the benefit of the ruling in that case as he was not acting in good faith, but on the contrary, willfully applied the funds of the plaintiff to the use of his principal. We believe the judgment was for the right party. Affirmed. All concur.