Sturges v. Keith

Citations

• 57 Ill. 451

Syllabus

<p>1. Banker—liability for special deposit. If a sole party, as a banker, receive stock or coin upou special deposit, and it be embezzled by Ms own clerk or cashier, then, although that would he a wrongful conversion of the property, still it would not be the act of the banker, nor would he be liable for such conversion, unless he participated in it, or was guilt}' of gross negligence, and the same rule would apply in case of a firm of hankers.</p> <p>2. Trover—demand of an agent. If stocks be delivered to the agent of a banking firm, as a special deposit in their bank, and subsequently a portion of the members of the firm withdraw, the former agent of the firm will thereupon cease to be the agent of the retiring members, so that upon an action of trover being brought, after the dissolution, against all the original partners, for an alleged conversion of the stocks, a demand upon the agent will not afford prima facie evidence of conversion as against those who had previously withdrawn.</p> <p>3. Trover—whether it will lie. A conversion is a positive, tortious act; mere non feasance or neglect of some legal duty will not suffice to support trover, although it may constitute sufficient ground to maintain an action on the case.</p> <p>4. So if a party he authorized by power of attorney to sell certain stocks, and the agent violate the instructions, or in any manner abuse his authority to the injury of his principal, his wrongful acts in that regard will not constitute a conversion so as to support an action of trover, but the remedy would be an action on the case for such abuse.</p> <p>5. Same—evidence in rebuttal as to conversion. In an action of trover for an alleged conversion of property, proof that the defendant sold the property under a power of attorney would rebut the prima, facie case made for the plaintiff by a demand and refusal.</p> <p>6. Parol evidence—to vary the terms of a power of attorney. Where an agency is created and conferred by a written instrumen