McRee v. Mexican Gulf Oil & Mineral Co.

Cobb, P. J.

When the averments of the petition are taken as a whole, they are, in effect, that the defendants were officers of a corporation and were charged with a joint duty of seeing that the funds of the corporation, in a given bank, were withdrawn only for proper corporate purposes. If they withdrew the funds for any other purpose, a breach of duty immediately arose; the funds, although in their actual possession, were wrongfully there; and the corporation had the right to compel them to restore the funds to it or its depositary. The petition distinctly alleges that the withdrawal was not for any lawful purpose, nor for any purpose authorized by the corporation. A definite breach of duty is alleged, and this breach was the joint act of the two officers; for, under the averments of the petition, the money could not be withdrawn from the bank except by the joint authority of the two officers. The corporation was entitled to have the money remain in the bank until withdrawn for its use, and, when wrongfully withdrawn, was entitled to have it restored to its depositary or to its own possession; and there is a definite allegation that these officers, who had so wrongfully withdrawn the funds, have failed and refused to repay the same. The petition, as against the general demurrer, certainly set forth a cause of action.

We do not think it is subject to any of the grounds set up in the special demurrer. The corporation was the owner of the funds, and therefore the suit was properly brought in its name. It is immaterial what disposition has been made of the funds by the two officers, so long as it appears that they have not been applied to any lawful corporate purpose. They may have used the fund themselves, or they may have misapplied it in some other way; but the disposition made of the money by them, whatever it may have been, does not affect their liability to repay the same to the corporation in the event that the corporation has not received the benefit of the disbursement. It was not necessary to set forth in detail the manner in which the funds were withdrawn. Whether they were withdrawn. at one time in one check, or at various times in a. number of checks, is immaterial so long as the entire amount withdrawn was wrongfully withdrawn and wrongfully withheld The averments in the petition were sufficient to call for an answer from the defendants as to their reasons for the withdrawal and their failure or refusal to repay the amount withdrawn.

Judgment affirmed.

All the Justices concur, except Fish, G. absent.