
    CHARLESTON.
    Piedmont Grocery Co. v. A. F. Hawkins.
    Submitted January 14, 1919.
    Decided January 21, 1919.
    1. CORPORATIONS — Appropriation by Officer — Remedy.
    The appropriate action to recover money improperly appropriated to his own use by an officer of a corporation is assumpsit for money had and received, (p. 181).
    2. Equity — Jurisdiction—Action—Ex Contractu — Attachment.
    Section 1 of ch. 106 properly construed confers upon courts of equity jurisdiction to entertain suits to recover on causes of action ex contractu where an attachment, supported by proper grounds therefor, is sued out as a basis of such jurisdiction, (p. 181).
    8. Attachment — “Fraudulently Contracting a Debt” — “Incurring a Liability” — Statute.
    An officer of a private corporation entrusted with its funds and property who improperly converts the same to his own use is guilty of fraudulently contracting a debt or incurring a liability to such corporation which will be the basis of an attachment under^the provisions of § 1 of ch. 106 of the Code. (p. 181),
    4. Same — Grounds—Affidavit—Statement in Disjunctive.
    
    Where an attachment is sued out and reliance is had upon two or more distinct grounds for support thereof they should be joined in the conjunctive, but where only one ground of attachment is relied upon and two or more phases of the same fact which constitutes such ground are stated, the joining of such different phases in the disjunctive will not invalidate the attachment affidavit, (p. 183).
    5. Same — Grounds—Affidavits—Disjunctive.
    An attachment sued out upon the eighth ground given by § 1 of ch. 106 of the Code, that the defendant fraudulently contracted the debt or incurred the liability for which the action or suit is about to be, or is brought, will not be quashed because the attachment affidavit states that the debt was fraudulently contracted or the liability incurred. This is but the declaration of two phases of the same fact which constitutes the basis of the attachment, (p. 185).
    Appeal from Circuit Court, Mineral County.
    Suit in equity with attachment by the Piedmont Grocery Company against A. F. Hawkins and others. Demurrer to bill and motion to quash the attachment sustained and suit dismissed, and plaintiff appeals.
    
      Reversed and remanded.
    
    
      F. C. Reynolds and TI. G. Fisher, for appellant.
    
      Arthur Arnold, for appellees.
   Ritz, Judge:'

The defendant was for many years the treasurer of the plaintiff, and it is alleged that during the time he was such officer, of the money coming into his hands he improperly appropriated large sums thereof to his own use, and that likewise during said time he, without authority, converted to his own use certain goods of the plaintiff. Upon the discovery of this alleged improper conduct on the part of defendant the plaintiff brought this suit in equity, and at the same time sued out an attachment against the property and effects of the defendant, upon the ground that he fraudulently contracted the debt or incurred the liability set up. A demurrer to the bill and motion to quash the attachment were sustained, and the suit dismissed.

The ground of the demurrer is that the plaintiff’s demand is a purely legal one of a tortious nature not cognizable in equity, even when accompanied by an attachment, and the grounds for quashing the attachment are that the facts set up in the affidavit do not show that the liability was fraudulently incurred, and further that the affidavit is void for uncertainty, inasmuch as it alleges that the defendant fraudulently contracted the debt or incurred the liability, so that it is impossible for the defendant to determine whether it is claimed that he contracted a debt or incurred a liability. • ;

The jurisdiction in equity is sought to be sustained solely upon the ground that it is conferred by § 1 of eh. 106 of the Code giving courts of equity jurisdiction of suits where an attachment is ancillary thereto. As this statute has been construed by this court in the cases of Swarthmore Lumber Co. v. Parks, 72 W. Va. 625, and Mabie v. Moore, 75 W. Va. 761, jurisdiction is only conferred upon courts of equity to entertain such suits when the cause of action is one ex contractu. In those two cases it is asserted that the jurisdiction does not exist where the canse of action is ex delicto. After reviewing- the history of our statute, we think the doctrine of thofee decisions is correct, and that wherever a plaintiff has a cause of action upon which he can maintain a suit in form ex contractu he may, if he have grounds therefor, sue out an attachment and prosecute a suit in equity. If, however, his cause of action is one upon which he must sue in tort equity will not have jurisdiction. The defendant insists that the cause of action set up in the bill is one ex delicto, while the plaintiff asserts that it is in its nature ex contractu. The charge in the bill and in the attachment affidavit is full and complete as to the items of money and property appropriated by the defendant, and it seeks to recover a judgment for the amount of money so appropriated and the value of the property. It is contended by the plaintiff that this is purely an action on contract, that when the defendant received into his custody money or property of the plaintiff, as its officer, there was an implied contract that he would account for the same and return it when required so to do, and that his failure to do this renders him liable in an action for money had and received. For the defendant it is contended that inasmuch as the allegations are that he is guilty of a criminal offense in converting this money and property to Ms own use, his acts are necessarily wrongful acts, and that the suit is no more than an action for damages for his wrongful conduct. It seems to be very clearly established by the authorities that for money misappropriated, or even for money stolen, an action of assumpsit for money had and received is the appropriate remedy. An act of misappropriation in the case of one entrusted with funds in an official or fiduciary capacity raises an implied obligation on his part to repay such funds, and even where money has been stolen it is uniformly held that the owner of the money may sue in assumpsit to recover the same. In Cooley on Torts, § 109, the author says: “No question is made of tMs doctrine, where, as a result of the tortious act, the defendant has come into possession of money belonging to the plaintiff. The law will not permit him to deny an implied promise to pay this money to the party entitled.” This test is fully supported by the authorities cited in the note. In the ease of Walker v. Norfolk & Western Railway Co., 67 W. Va. 273, this court held that an action of assumpsit wrould lie against one who appropriates the property of another to recover the value thereof. In that ease the plaintiff, a contractor, left a pump stored temporarily on the right-of-way of the defendant, and the defendant, appropriated this pump to its own use, and a recovery for the value thereof in an action of assumpsit was allowed. Many cases might be cited to. support the doctrine that for money wrongfully converted: or stolen an action of assumpsit will lie to recover against the wrongdoer. Gould v. Baker, 12 Tex. Civ. App. 669; Howe v. Clancy, 53 Me. 130: Shaw v. Coffin, 58 Me. 254; 4 Am. Rep. 290; Spencer v. Towles, 18 Mich. 1; Beardslee v. Horton, 3 Mich. 560; Royce v. Oakes (R. I.) 39 L. R. A. 845; Downs v. Baltimore City, 111 Md. 674. The fact that the defendant may be guilty of a criminal offense in misappropriating the fund sought to be recovered in no way changes; his civil liability to the plaintiff. If there were no statute making the misappropriation of these funds criminal, could it be doubted for a moment that there was an implied contract to repay them? The defendant would stand in no different position from the man who had borrowed money frorm another with an express promise to repay it. The law will! not permit him to secure the funds of another in his capacity-as agent, and then use them for himself without also raising a promise upon his part to repay. We are clearly of opinion that the cause of action set up in this case is one ex contractu, and such as gives jurisdiction to a court of equity to entertain a suit under the’provisions of § 1 of ch. 106-of the Code, where an attachment is sued out upon sufficient grounds. ' ,

But the defendant insists that no ground for the attachment sued out in this case is shown by the affidavit, and further that the affidavit is fatally defective. The affidavit was: sued out upon the eighth ground specified in § 1 of ch. 106,. and that is that the defendant fraudulently contracted the debt or incurred the liability for which the action or suit is brought. His contention is that the conversion of this money to his own use, he having come into possession of it lawfully, does not make him guilty of any fraud in incurring the liability or contracting the debt sot up in the bill. It is quite true that so far as the funds embezzled are concerned they came into the possession of the defendant lawfully: so far as the goods appropriated by him to his own use are concerned, this cannot be said. The allegation in this regard is that he abstracted certain goods from the store of the plaintiff, used them himself, and charged the value thereof to various customers of the plaintiff, seeking in this way to conceal his own misconduct. But can the-fact that he secured possession of the funds lawfully make any difference? So long as he retained the lawful possession of them as an officer ■of the company there was no cause of action against him. ‘The canse of action set up in this ease arose when he appropriated these monies to his own use, and can it be said that the deliberate taking of another’s funds held for a particular purpose, and applying them to an entirely different purpose, Is not a fraudulent act? It seems to us that this is clearly fraudulent. The defendant cites the case of Goss v. Board of Commissioners, 4 Col. 468, in support of his contention, and that case does in a measure lay'down the doctrine contended for by him, but a reading of it shows that the decision is largely based upon an entirety different proposition. In that case the party from whom the money was sought to be recovered was not a. direct agent of the plaintiff, but was an employe of the treasurer of the plaintiff, and the court held that the extent of the plaintiff’s rights were fixed by its contract with the treasurer, and recovery on the treasurer’s bond was the appropriate remedy for it to pursue. We are not prepared, however, to approve the doctrine laid down in that ease that where a deputy or employe of the treasurer misappropriates funds entrusted to him as such employe the owner of such funds cannot sue in an action for money had and received to recover a judgment for the same. In the case of Downs v. Baltimore City, 111 Md. 674, it is held that the wrongful conversion of funds by an officer constitutes fraudulently contracting an obligation which will sustain an attachment, and the reasoning of the court in that ease seems to us to be entirely sound. Many cases are cited in support of the text at page 78 of 6 Cor. Jur. bolding that attachment lies for goods or money embezzled or stolen, or obtained by other species of fraud. The doctrine of that text is also authority for the proposition that an action of assumpsit is an appropriate remedy in such case.

The remaining ground for quashing the attachment is that the statement “fraudulently contracted the debt” is joined in the disjunctive with the statement “incurred the liability.” Docs this make the attachment affidavit bad? ' It is quite true that where inconsistent or separate grounds of attachment are joined in the same affidavit they must be joined in the conjunctive, for the reason that if the disjunctive is used the defendant is not apprised of which one of the grounds is relied upon: and then, too, the affidavit may be said not to contain an allegation that any ground exists, for the reason that the affiant only swears that one or the other of two or more grounds exist, but does not say which one. But this doctrine has no application where the statement contains but two or more phases of the same fact, or different facts of the same nature which constitute a single ground for the attachment. So it has been held that an affidavit is not defective because it states in the alternative different, modes of effecting a stated purpose or intent, especially where in so doing if follows the language of the statute. 6 Cor. Jur. 136; 2 R. C. L., 833; Sandheger v. Hosey. 26 W. Va. 221; Shinn on Attachment & Garnishment, § 146; Drake on Attachments, § 102; Waples on Attachment & Garnishments, § 136. In this ease the ground of attachment relied upon is that specified as the eighth ground in § 1, ch. 106, and the fact that the defendant’s alleged liability is charged to have arisen by fraudulently contracting the debt or incurring the liability is but two ways of stating the same substantive proposition. and under all of the authorities does not vitiate the affidavit.

Our conclusion therefore is to reverse the decree of the circuit court, of Mineral county and remand the cause for further proper proceedings.

Reversed and remanded.  