The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
The above-captioned action is before this Court as part of a larger diversity action brought by plaintiff, Leigh Company ("Leigh Co."), a limited partnership based in Boston and formed under Massachusetts law, against several defendants in the United States District Court for the Central District of California. One of the named defendants in that action was the Bank of New York (the "Bank"), and New York corporation. Plaintiff's claims against the Bank were severed and transferred to this Court on March 9, 1983. The only claims before this Court are those asserted against the defendant Bank in Counts 10 and 11 of plaintiff's complaint.
The Bank moves, pursuant to Rule 12(b)(6), F.R.Civ.P., to dismiss Count 10 of the complaint, alleging a cause of action for money had and received or for conversion, for failure to state a claim upon which relief can be granted, and Count 11, alleging that the Bank committed what plaintiff calls a tort of "wrongful deposit." The Bank moves in the alternative for summary judgment on Count 10 alone, pursuant to F.R.Civ.P. 56.
The material facts in this dispute are taken from the complaint, and treated as true for purposes of the motion to dismiss, George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977), or are uncontroverted facts contained in the parties' briefs and pleadings.
Plaintiff Leigh Co. is a Massachusetts limited partnership whose general partners are Jennifer Leighton and her father, Paul Leighton. On November 1, 1981, Leigh Co. contracted to purchase a feature film entitled "Super Seal" from Producers Clearing House ("PCH") pursuant to a Film Purchase Agreement. The deal was arranged by a third party, Robert Dziurgot, known to both PCH and Leigh Co. The terms of the Agreement provided that the total purchase price of the film would be ,300,000, with 00,000 payable on execution of the Agreement, another 00,000 due on January 15, 1982, and the balance of ,l00,000 to be paid by promissory note.
Accordingly, on the date of the Agreement's execution, Leigh Co. delivered to PCH and other defendants, through Dziurgot, the promissory note described in the Agreement, and a check drawn on the State Street Bank & Trust Company of Boston, Massachusetts ("State Street Bank") in the amount of 00,000 dated October 30, 1981, made payable to "Producers Clearing House."
Dziurgot brought the first 00,000 check to the Bank where he opened a partnership checking account on November 4, 1981 in the name of Producers Clearing House. Dziurgot filled out the Bank's standard form Partnership Account Agreement on which he represented himself to be a general partner of PCH and claimed to be the only partner authorized to sign checks on behalf of the partnership. Dziurgot also filled out a Partnership Authorization Agreement which authorized him to conduct banking transactions on behalf of the partnership. He then deposited the 00,000 check in the newly-opened account by indorsing it with the typewritten inscription:
Two days later, Dziurgot drew a $60,000 check payable to Leigh Co. on the PCH partnership checking account using blank temporary checks issued by the Bank. Since Dziurgot had previously arranged with Leigh Co. for a company named Aires Limited to purchase a limited partnership interest in Leigh Co., Jennifer Leighton accepted the check believing it to be Aires' payment in purchase of that interest. Leigh Co. deposited the $60,000 check and received the proceeds thereof.
Leigh Co. received the cancelled 00,000 check in its December 1981 monthly statement from the State Street Bank.
On or about January 15, 1982, Leigh Co. drew another check on the State Street Bank in the amount of 00,000, dated January 15, 1982 and payable to PCH. This check, intended by plaintiff to be the second payment required by the Film Purchase Agreement for purchase of "Super Seal," was also delivered to Dziurgot. He then deposited this second 00,000 check in the PCH account with the Bank after indorsing it with the typewritten inscription:
Acct. of Producers ...