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was reversed in part and affirmed in part, that court holding as to Joseph Kriete and the twenty-seven others who were shown to be depositors, that they had deposited, as shown by the clear weight of the evidence, with David J. Sachsel individually and not in fact with the association, and that the association received none of the money, but that if they had made their deposits with the association it was beyond the scope of authority and power of said association and ultra vires, and as to them reversed the decree and directed that their petitions be dismissed. As to Albert Truka ard nineteen others claiming for matured stock, that court affirmed the findings and decree of the lower court. The case comes to this court on error, and plaintiff assigns error on the findings and order last menticned, and Joseph Kriete and the other depositors assign cross-errors as to the order for the dismissal of their petitions.
Of those claiming for matured stock, Albert Truka, John J. Krauth, August Duppke, Godfried Schurz, August Czanzkowski, H. Semmler, Otto Triphahn and Francis X. Lang allege they "deposited" only, and the others allege they "left with, deposited in, loaned to" the association.
JAMES J. Hoch, and HARRY P. SIMONTON, for plaintiff in error.
EDMUND FURTHMANN, for defendants in error.
Mr. JUSTICE RIcks delivered the opinion of the court:
The disposition of this case involves the consideration of the rights of those who were depositors, and spoken of as “Kriete and his class,” and those claiming as holders of matured stock, and mentioned above as "Truka and his class."
As to the depositors, the evidence shows that David J. Sachsel was the secretary of the association from about the time of its organization to about the time of the ap
pointment of the receiver. In the office of the association he conducted insurance, real estate brokerage, money loaning and a foreign steamship ticket agency, all on his own account. He was paid a salary as secretary and hired and paid his own assistants, having in his employ Elsie M. Schiele as brok-keeper, and Charles J. Flugel, who assisted in receiving money on the days for payment of dues. The greater part of the time the office of the association was at the residence of Sachsel. The association had out its forty-ninth series of stock. Its membership was large and they paid promptly, it appearing that near the time the receiver was applied for, out of seventy odd loans outstanding less than ten were in arrears, and those but a week or so. There was never but one foreclosure, and the cash-book showed that at the time the receiver was appointed there should have been on hand $52, 317.45. Occasional deposits were made as early as 1893, but the great bulk of them were made in 1895 and 1896. As nearly as can be ascertained from the evidence, between $10,000 and $50,000 was placed in the bands of Sachsel on deposit, some of it by stockholders or members, but far the greater portion by non-stockholders. These deposits, in point of time, were made as the ordinary business man would usually make them. The account of Frederick Reitz, one of the petitioners, is a clear illustration of the method and extent of the business. From August 27, 1895, to August 3, 1896, he deposited $3381 in thirty-eight deposits, in sums from $10 to $1000, and between the time of making the first deposit and January 1, 1897, he bad withdrawn $1905.50, in sums from $100 to $710, taken at six different dates.
There were about fifty depositors, comprising working women, small merchants, shop-keepers, money brokers and small dealers in real estate. To all these depositors Sachsel stated the association would pay interest, -to some five per cent and to others six per cent semi-annu. ally,—and that each could draw his money, or any part
of it, at pleasure, without any notice to the association, request for withdrawal or payment to any one but Sachsel. The evidence further shows that most all these depositors did draw interest, some at one and some at the other of the rates above stated. When a depositor came he was given an ordinary stockholder's pass-book of the association, in which were written the name of the depositor and the date and amount of the deposit, and the word “deposit” was written above the amount; and when the deposit, or any part of it, or interest, was withdrawn or received by the depositor, a receipt was written in the pass-book, saying the holder of the pass-book had "received from David J. Sachsel" whatever sum was paid, and the holder required to sign his name to the receipt. The money thus withdrawn, and the interest when paid,
, were always paid by Sachsel, either in currency or by Sachsel's private check. The evidence shows that there was never a dollar of it paid upon the order of the board of directors or the ordinary money voucher of the association. The money, when received on deposit, was not placed on the cash-book or reported to the board of directors at the meetings, which were weekly, as part of the receipts, and never at any time entered into or formed any part of the current account, or was placed among the usual entries of business in the books or minutes of the association. The books of the association, in so far as they related to its legitimate business between it and its stockholders, were perfectly kept, as testified to by three expert accountants, and on their examination by agents of the State Auditor's office, made annually, (the last being September, 1896,) were found correct in every
The secretary, Sachsel, kept a general ledger, which the experts say was an unnecessary book, and to which the agents of the State, in their examination, never referred, and in the back of this book, on pages 400 to 460, and between which and any other business entry or mat
ter were three hundred blank pages, was found, after the receivership, the deposit account. It had no name or designation, but simply the names of the people and the date and amounts, debit and credit. The index to this account did not appear in the ledger among the other matters indexed, but was kept in a small pocket memorandum found in the private safe of Sachsel. Nobody connected with the association, except Sachsel and his female assistant, Elsie Schiele, knew of this account. She was a young German girl with no experience or education in book-keeping, and had been in his employ for about four years.
She testified that she kept the books and made the entries as directed by him. There was no by-law or resolution by the stockholders or board of directors authorizing the receipt of these deposits, and while the evidence shows that some of the directors knew of it, it does not show that a majority of them did. There is no evidence whatever showing that the association proper ever received or used or had the benefit of a cent of this money, but the whole evidence shows the contrary. All moneys of the association, from whatever source derived, belonging properly to it, appeared in its cash-book and other books in proper and regular manner and order, and all moneys paid out by it, outside of the deposits and interest thereon, were paid upon regular vouchers, (orders issued by the association,) and were shown by the stubs, the minute book or record of meetings and the cash-book. The evidence further shows that a number of stockholders made advance payments on their stock,that is, paid their dues, or, if borrowers, principal, interest and dues, in amounts of $50 to $100, and in some instances $500 or more, in advance of the time they were due, and let the amounts stand to their credit to meet accruing liabilities, and that in every instance these moneys properly appeared on the books of the association.
Another fact worthy of mention and appearing from the evidence is, that Karl Kronenberger, the last treas
urer of the association, had served five or six consecutive years in that capacity. The by-laws required the secretary to pay to the treasurer, each meeting night, the moneys received since the last meeting. The secretary did receive from the treasurer, every meeting night, his receipt for the exact amount of money as shown by the cash-book, but the treasurer never, in fact, received or handled any of the money, but left the same in the hands of the secretary.
The by-laws of the association limited the loans to be made to any one stockholder to $1000. The evidence shows that in 1896, in anticipation of the visit of the State examiner, Sachsel took for the association, on pretended loans, five mortgages: one from his wife, for $6000; one from one Leshchus, $6000, and three others for $4000 each, making $24,000 in all. He placed all but the one from his wife of record, and between that and March, 1897, released and satisfied all of them. For more than a year borrowers had been turned away with the statement that the association had no funds to loan and was paying all its receipts on matured stock. In March, 1897, Sachsel admitted to the directors he was $8000 or $10,000 short in his accounts, and, pending negotiations of settlement, fled, taking, as nearly as can be found from the books, the $52,000 that should have been in the treasury as shown by the cash-book, about $14,000 for which he had falsely taken credit on the cashbook as having been paid on vouchers to holders of matured stock, and about $25,000 of these special deposits.
Most of the depositors testify that it was their understanding that they were depositing with and were to be paid by the plaintiff association both principal and interest, and some of them testify that part of their deposits were made at the time of the meeting of the board and that some members of the board knew of it, and they insist that it was within the implied power of this association to receive these deposits; that the same should