Maryland Casualty Co. v. Wolff

Bond, C. J., delivered the opinion of the Court. This suit, in trover, instituted in 1940, isffounded upon assistance given by the defendant, Wolff, the keeper of a grill or restaurant, in what proved to be a theft of the funds of the Fidelity and Guaranty Fire Corporation by one of its employees. The Maryland Casualty Company, the plaintiff, had, in compliance with its bond issued to the Fidelity Corporation, paid the loss and received an assignment of claims over. Appealing from a judgment for the defendant, after a trial before the court without a jury, that plaintiff disputes the correctness of instructions or declarations of law granted the defendant on the two questions of the finding of a conversion and of the application of the statute of limitations to losses of amounts taken three years or more before institution of the suit.

John J. Joyce, the defaulting employee, was charged with the duty of preparing and approving requisitions for money due from the corporation to its agents and brokers in the field. The treasurer or assistant treasurer would regularly approve a requisition so prepared, and a check would then be made out accordingly. A letter to the payee would be written to accompany the check, and with it would be given to the mailing department. ⁵¹⁵ Joyce accomplished the misappropriation by intercepting the letter and check before it was mailed, keeping the check for cashing and appropriating the money to himself, and then making entries in the corporation records to cover the defalcation. For the purpose the names of friends of Joyce in Baltimore were used as payees of the checks, and he secured their consent and endorsements by representing that the money was due to him for commissions on insurance sold by him, but that the names of friends must be used because it was not customary for office employees of the corporation to collect premiums on such insurance, as it did not want its agents to know that office employees were thus engaging in the business of selling.

It was further represented that the method of concealment was known to the treasurer, whose name appeared on the checks, and was approved by him. Wolff was one of the friends whose names were so used. He took the representations to be true, and endorsed, or sometimes cashed, the checks made out to him, but merely turned the money over to Joyce, receiving none of it himself. As the case was tried before the court below without a jury under Rule 9c, Part Three, III, Gen.

Rules of Practice and Procedure, of this court, adopted on January 30, 1941, it may be reviewed upon both the law and the evidence, but there is no dispute of facts. Conversion of a check as a chattel, a tort, is, of course, the subject of the suit. The money represented by it is not the direct subject, as trover does not lie to recover money converted; it lies to recover damages for the tort. See authorities collected in Davin v. Dowling, 146 Wash. 137, 140 , 262 P. 123 .

And the conversion alleged is a wrongful assumption of property or right of possession in the check by endorsing it, or an intermeddling with a right of possession in the corporation, an “unauthorized assumption of the powers of the true owner.”