The plaintiffs herein are suing for conversion of checks by the defendant bank. The issue tendered by the pleadings was whether the defendant bank had title to these checks. The plaintiffs’ bookkeeper had no authority to use the proceeds of these checks, but, concededly, he not only had authority but it was his duty to deposit these checks to the plaintiffs’ credit in the defendant bank. Ooncededly, too, he had authority and it was his duty to indorse these checks to the bank by means of two rubber stamps. When he did so the bank received title to these checks and became a debtor to the plaintiffs for the amount received upon them, but failure to credit' this amount could not make the defendant liable for conversion. While this is more clearly true of the checks which were indorsed by the bookkeeper by means of the rubber stamps, I think that it is also true of the cases where the bookkeeper signed the indorsement in the firm name in his own handwriting instead of with a rubber stamp. The bapk knew that the bookkeeper was in charge of the plaintiffs’ office and that he was permitted to indorse checks and deliver them to it, although not. permitted to indorse checks to other persons. In indorsing these checks he was acting within the scope of his authority; and the fact that he signed the plaintiffs’ name with pen and ink, instead of with a stamp provided for that purpose, is immaterial. He was authorized and directed to transfer title to the defendant; and, in receiving the checks, the defendant committed no tort and in no wise failed in its duty to the plaintiffs. It certainly had no right, however, to credit these checks to any person other than the plaintiffs; and the plaintiffs are in no wise bound by such unauthorized credit. The defendant has received the money and is bound to return this money to them, and the plaintiffs are entitled to bring an action against the defendant for money had and received.
They have, however, not brought this action, but they have tendered the issue of title to these checks and they have failed to sustain this issue and the complaint should have been dismissed. Even if the defendant had not raised this point in the court below, I am doubtful of our right now to *539amend the pleadings to conform to the proof, where such an amendment would change the nature of the cause of action from tort to contract. I think, however, that the defendant raised this point in its motion to dismiss, although its attorney has not stated this ground as clearly as he might have done. It was certainly stated sufficiently clear to bring the matter before the trial justice. His opinion begins with the words: “ These actions are properly brought for conversion,” and he then proceeds to discuss the question of whether there has been a conversion in an argument that is so careful and clear that I have only reluctantly reached the opposite conclusion. Having, however, reached this conclusion, I feel that we are bound to reverse the judgment and order a new trial.
The judgments should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgments modified, and, as modified, affirmed.