
    State of Missouri to the use of Charles D. Mathews, Appellant, v. George N. Boughton et al., Respondents.
    St. Louis Court of Appeals,
    May 1, 1894.
    1. Notary Public: right of action on official bond. When a notary public, who in his individual capacity acts as the agent of another person, is guilty both of official misconduct and of the embezzlement of funds as such agent, no cause of action on his official bond accrues in favor of his principal, if such embezzlement is the direct cause of the resulting loss, and if, moreover, his principal does not part with any value on the faith of his official misconduct.
    2. --■:--. In this cause the notary had in his charge money of his principal for the purpose of loaning out the same on real estate security. He received credit for loans dn the account between himself and his principal on the delivery of the notes and deeds of trust therefor to the latter. After embezzling money thus in his charge, he delivered to his principal notes and deeds of trust which he had forged in the names of persons who had no existence, and to which he had as notary attached false certificates of acknowledgment.
    
      Seld, that no recovery could be had by his principal in an action on his official bond.
    
      
      Appeal from the Stoddard Circuit Court. — Hon. John G-. Wear, Judge.
    Aeeirmed.
    
      Wilson Cramer for appellant.
    
      J. L. Fort for respondent.
   Rombauer, P. J.

This is. an action on the bond •of a notary public against that officer and his sureties. The sureties first demurred to the petition, on the ground that it nowhere appeared thereby that the relator had suffered any damages by the dereliction on part of the officer of his official duties. Their demurrer being overruled, the defendants answered by way of general denial. The trial of the cause before a jury resulted in a verdict for the defendants. The relator on this appeal complains that the court erred in its instructions.

It appeared by the pleadings and the relator’s evidence that the relator was a money lender residing in .Sikeston, Scott county; that the defendant, Boughton, was an attorney at law and notary public residing in Dexter, Stoddard county; and that the relator for a number of years had employed Boughton as his agent to loan out his money upon notes secured by deeds of trast on lands in Stoddard county. The manner adopted in effectuating such loans was that the relator would place a certain sum of money into Boughton’s .hands, and Boughton would loan the money out and remit the notes and deeds of trust taken to the relator, with whom he kept a running account.

In May, 1890, the relator began to suspect that Boughton was guilty of some frauds in his transactions with him. He called upon Boughton, who confessed that he had forged a number of the notes, and the signatures of the deeds of trust, and that the persons whose acknowledgment to these conveyances he pretended to have taken as a notary public had no existence. The plaintiff’s own testimony on this subject is as follows: “Pie gave me a list of his forgeries, and said that many whose names appeared did not exist. On June 15 he gave me a revised list. lie gave me these as his forgeries. On June 15, 1890, he gave me also a second memorandum showing moneys he claimed to have collected for me and had not turned over. He confessed to me that all these papers were forgeries. Boughton most always sent the notes and deeds of trust together; .sometimes the notes would come first, and the deeds of trust would follow in a few days. They came about half and half in that way, one-half of the notes with the deeds of trust, and for the other half the deeds would follow later. When the notes came without the deeds of trust, I would simply check them, and when the deeds of trust came, he would get his final credit.”

It thus appears from the relator’s own evidence that he never parted with any value on the faith of Boughton’s official acts. Boughton as the relator’s agent sent to him a number of forged notes, and forged and fraudulently acknowldged deeds of trust, and on the faith thereof obtained certain credits on his account with the relator. It is difficult to see on what theory any liability on Boughton’s official lohd is to be enforced under these circumstances. The damages which the relator has sustained are the result of his own gross negligence, and the criminal conduct of his agent. It stands conceded that the persons whose names were forged by the relator’s agent had no existence, and hence could have neither credit nor land, and there is no pretense that other persons of the- same name owned the land described in the deeds or any land. Rejecting the question of agency altogether, yet the frauds of Boughton as far as his official acts are concerned were, as far as relator is concerned, mere damnum absque injuria.

In Heidt v. Minor, 89 Cal. 115, a case almost identical in its facts with the case at bar, it was held that it is nq, part of the official duty of a notary to receive money from anybody, and that his sureties are not liable for money fraudulently obtained and retained by him. There, as in the case at bar, the money was obtained upon forged mortgages. It was also held in that case that, where the official misconduct consists in certifying falsely to'thb acknowledgment of mortgages, the sureties are liable only for what would be the value of the mortgages, if valid. In Hatton v. Holmes, 97 Cal. 208, it was held that a person, whose own negligence was the proximate cause of .the loss, can not recover from the sureties of a notary on account of the latter’s false certificate. These cases are illustrative of the well known principle that, although the loss results remotely from the principal’s negligence or criminal conduct, hi§ sureties will not be responsible to one whose own negligence was the immediate cause of the loss.

The appellant contends that the case of People v. Butler, 42 N. W. Rep. 273, is opposed to this view. This, however, is error. In that case the persons whose names the notary forged to the deed as grantors, and to whose acknowledgment he falsely certified, were not only persons in existence, but were the actual owners of the lands on the security of which the money was loaned; hence the notary’s fraud was the direct result of the loss. In the recent case of State ex rel. Alexander v. Plass, 58 Mo. App. 155, and presenting very analogous questions, we held that a notary and his sureties are liable on the bond only for damages which were the direct result of his official misconduct.

A§, under the admitted facts of the case, the damages are the result solely of the criminal conduct of plaintiff’s own agent in embezzling the plaintiff’s funds, the mere fact that such agent happened to- be a notary can not give the plaintiff a cause of action on the bond. The false certificates of acknowledgment .are in fact wholly extraneous matter. This distinguishes the case from State ex rel. Alexander v. Plass, supra, wherein we held the plaintiff entitled to nominal damages. The judgment is affirmed.

All concur.  