Westervelt v. Mohrenstecher

No. 757
Decided Circuit Court of Appeals, Eighth Circuit
Disposition
reversed and remanded
full scope · unanimous
Scan to open on mobileScan to open on another device
Court
Circuit Court of the United States for the District of Nebraska
Decided
Judge
SANBORN, Circuit Judge
Posture
Judgment rendered against plaintiff upon the pleadings
Plaintiff in error (Receiver of Citizens’ National Bank of Grand Island, Neb.) (1)
Edgar M. Westervelt
O. A. Abbott, John W. Blee, Ralph W. Breckinridge
v.
Defendants in error (Cashier and sureties on bond)s (4)
George A. Mohrenstecher, Mary Mohrenstecher, Otto A. Mohrenstecher, William Stull
C. C. Flansburg, S. L. Geistliardt, W. H. Thompson

Overview

The judgment below is reversed, with costs, and the case is remanded to the circuit court with directions to proceed to trial.

Case summary

This case involves an action by the receiver of Citizens’ National Bank of Grand Island, Nebraska, on the bond of its cashier, George A. Mohrenstecher, and his sureties. The cashier misappropriated funds and made excessive loans, causing losses. The trial court held the cashier's office was annual under bank by-laws, limiting bond liability to the first year. The Eighth Circuit reversed, holding: (1) under the National Bank Act, the cashier's term is not annual but continues until resignation or removal, making by-laws for annual election nugatory; (2) the bond language 'for and during all the time he shall hold the said office' clearly covers the entire tenure, regardless of annual reappointments; and (3) obtaining judgments on promissory notes taken by the cashier is no defense to the bond action, as it seeks damages for breach, not rescission. The court remanded for trial, excluding the issue of the married woman surety's liability for initial consideration below.

Abstract

The receiver of a national bank sued the cashier and sureties on his bond for misappropriating funds and making excessive loans. The trial court limited bond liability to one year based on bank by-laws deeming the office annual, but the appellate court reversed, holding the National Bank Act establishes the cashier's term as continuing until resignation or removal, rendering by-laws ineffective, and the bond covers the entire tenure regardless of reappointments. Judgments on promissory notes obtained by the cashier do not defend against the bond claim seeking damages for breach, and the case was remanded for trial excluding the married woman surety's liability issue related to initial consideration.

Opinion of the court

Majority
opinion
SANBORN, Circuit Judgejoined by CALDWELL, SAXHORN, THAYER
  • National Bank Act fixes cashier's tenure at pleasure of board, not annually.
  • Bond language 'during all the time he shall hold the office' expresses intent to cover entire tenure.
  • Obtaining judgments on notes is no defense to bond action for damages.

Jurisdiction

not challenged
Subject matter
Appeal from Circuit Court of the United States for the District of Nebraska
Jurisdictional facts
  • Error proceeding from federal circuit court

Procedural posture

Posture at trial
Judgment rendered against plaintiff upon the pleadings
Posture on appeal
Direct appeal (writ of error)
Preserved issues
  • Interpretation of cashier's bond liability
  • Effect of annual reappointments on bond coverage

Legal categories

Business

Case record

Full case name
WESTERVELT v. MOHRENSTECHER et al.
Docket number
No. 757
Court
Circuit Court of Appeals, Eighth Circuit
Trial court
Circuit Court of the United States for the District of Nebraska
Decided
Opinion author
SANBORN, Circuit Judge
Opinion type
published
Precedential status
precedential
Judges on panel
CALDWELLSAXHORNTHAYER

Issues & holdings

2
Issues raised
2
reversed
3
Holdings
Standard of review

de novo

Disposition rationale

Bond language covered all time Mohrenstecher held office; office was not annual under National Bank Act.

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

No defense; bond action is for damages from breach, not rescission; both remedies may be pursued until full payment.

Preservation

Issue preserved for review

Holdings of the court

Term of cashier's office under National Bank Act
The office of cashier of a national bank is not an annual office; the term continues until resignation, removal, or appointment of successor by board of directors.
National Bank Act provides board may dismiss cashier at pleasure and appoint others; by-law providing annual election is nugatory as inconsistent with Act; reappointments do not alter term fixed by Act.
unanimousbinding precedent
Construction of cashier's bond
Bond conditioned for performance 'for and during all the time he shall hold the said office' binds sureties for all such time, regardless of annual reappointments.
Bond is contract; intention of parties controls; language clearly expresses liability for entire tenure; sureties could have limited liability but did not.
unanimousbinding precedent
Defense based on judgments on promissory notes
Obtaining judgments on notes taken by cashier for misappropriated funds and excessive loans is no defense to action on bond for damages from breach.
Bond action is for damages, not rescission; no inconsistency in pursuing both remedies until full payment; recovery on notes reduces damages but does not bar action.
unanimousbinding precedent

Error analysis

  • Trial court erred in holding cashier's office was annual and bond liability limited to first year. — legal · error foundError not harmless; it disposed of case on pleadings incorrectly. · not harmless

Statutory interpretation

1
Statute
National Bank Act (13 Stat. c. 106, p. 101, § 8; Rev. St. U. S. § 5136)
Question
Whether cashier's term is fixed or at pleasure of board.
Court's reading
Cashier holds office at pleasure of board; board may dismiss at pleasure and appoint others.
Canons applied
Plain meaningPurpose-based interpretation

Standards of review

  • Interpretation of bond and applicability of bond liability — de novo Construction of contracts and legal instruments reviewed de novo.

Timeline

7
Events
2,556
Days, incident to ruling
— pre-1896
Span
factual eventcited in opinion

D. H. Vieths appointed cashier at annual meeting of board of directors.

D. H. Vieths · Board of Directors
factual eventcited in opinion

Vieths resigned; board resolved to appoint George A. Mohrenstecher as cashier.

George A. Mohrenstecher · Board of Directors
factual eventcited in opinion

Mohrenstecher and sureties delivered $10,000 bond to bank.

George A. Mohrenstecher · Mary Mohrenstecher · Otto A. Mohrenstecher · William Stull · Bank
factual eventcited in opinion

First annual resolution appointing Mohrenstecher cashier passed by board.

Board of Directors
1890-01-14 to 1898-12-04factual eventcited in opinion

Annual resolutions each January reappointing Mohrenstecher cashier; Mohrenstecher misappropriated funds and made excessive loans.

George A. Mohrenstecher · Board of Directors
factual eventcited in opinion

Bank suspended payment; receiver appointed.

Bank · Edgar M. Westervelt
pre-1896trial eventcited in opinion

Trial court granted judgment against plaintiff on pleadings.

Outcome: Judgment for defendants

trial court

Facts & evidence

Incident

Location
Grand Island, Nebraska

Key facts

8 facts
  1. Citizens’ National Bank of Grand Island operated from before January 1889 until December 4, 1898, when it suspended payment and went into receivership.
  2. George A. Mohrenstecher was appointed cashier in May 1889 after D. H. Vieths resigned.
  3. On August 13, 1889, Mohrenstecher and sureties (Mary Mohrenstecher, Otto A. Mohrenstecher, William Stull) delivered a $10,000 bond to the bank.
  4. The bond condition stated it would be void if Mohrenstecher 'for and during all the time he shall hold the said office of cashier' performed duties faithfully.
  5. Board of directors passed annual resolutions in January each year (starting January 14, 1890) appointing Mohrenstecher cashier.
  6. Mohrenstecher misappropriated bank funds and made excessive loans, causing losses of $17,321.82.
  7. Bank/receiver obtained judgments on promissory notes taken by Mohrenstecher but could not collect them.
  8. Mary Mohrenstecher was a married woman when she signed the bond.

Procedural history

3 steps
  1. Action brought by receiver on cashier's bond.
  2. Trial court granted judgment against plaintiff on pleadings, holding cashier's office was annual and bond liability limited to first year.
  3. Plaintiff appealed.

Evidence in the record

Documentary
  • Bond dated August 13, 1889, with condition for performance 'for and during all the time he shall hold the said office'
  • National Bank Act (13 Stat. c. 106, p. 101, § 8; Rev. St. U. S. § 5136)
  • Articles of association of bank
  • By-laws of bank providing annual election of cashier
  • Resolutions appointing Mohrenstecher cashier in May 1889 and annually thereafter
  • Promissory notes taken by cashier for misappropriated funds and excessive loans
Challenged
  • Evidence type: By-laws providing annual election of cashier · Challenge basis: Inconsistency with National Bank Act · Trial court ruling: admitted · Reasoning: Trial court relied on by-laws to find annual office · Challenged on appeal: true · Appellate outcome: reversed

Objects of relevance

Promissory notes taken by cashier$10,000 bond document

Authorities

Cited authorities (7)

13 Stat. c. 106, p. 101, § 8
appliedquotedprecedent
National Bank Act provision granting power to appoint and dismiss cashier at pleasure
Rev. St. U. S. § 5136
appliedprecedent
Codification of National Bank Act powers
Harris v. Babbitt, Fed. Cas. No. 6,114
distinguishedprecedent
Rule that bondsmen liability limited to fixed term unless expressly agreed otherwise
U. S. v. Irving, 1 How. 250, 259
distinguishedprecedent
Same rule on bond liability for fixed terms
Bank v. Rogers, 7 N. H. 21, 23
followedprecedent
Bond for officer at pleasure covers all delinquencies until removal
Accumulator Co. v. Dubuque St. Ry. Co., 27 U. S. App. 364, 12 C. C. A. 37, 64 Fed. 70
appliedquotedprecedent
Rule that contract interpretation focuses on intention of parties
Vulcanite Co. v. Caduc, 144 Mass. 85, 10 N. E. 483
followedprecedent
No inconsistency in pursuing multiple remedies until full payment

Statutes

  • National Bank Act (13 Stat. c. 106, § 8)
  • Rev. St. U. S. § 5136

Standards & doctrines

  • De novo review for contract interpretation
  • Rule favoring sureties in bond construction

Legal principles applied

  • National banks have only powers granted by Congress and those incidental
  • By-laws cannot contradict governing statute
  • Bond is contract interpreted by canons of contract construction
Index terms70
Summary terms
Legal mechanisms
Various actions
Various actors
Legal concepts
Legal outcomes
Legal issues
Legal procedures
Legal remedies
Legal evidence
Legal arguments
Legal defenses
Legal penalties
Legal procedural steps
Geo locations
Judges
Attorneys
Procedural terms
Substantive offenses
Entities and documentation
Legal actions
Action type
reversed and remanded
Target
trial court judgment
Appealed from
Circuit Court of the United States for the District of Nebraska
Context
Trial court erred in holding bond liability limited to first year; case remanded for trial on bond action.
Scope
full
Further instructions
Proceed to trial, excluding initial consideration of married woman surety issue.
Disposition vote
unanimous
Search facets
Parties
Judges
CaldwellSaxhornThayer
Courts
Locations
Statutes cited