
24 B.R. 240 (1982)
In the Matter of WHOLESALE FURNITURE MART, INC., Debtor.
Leo HILL, Petitioner,
v.
I.I. OZAR, Trustee in Bankruptcy, Respondent and Third-Party Petitioner,
v.
Richard GRAY and Pamela Gray, Third-Party Respondents.
Bankruptcy No. 80-01035-3, Adv. No. 82-0629-3.
United States Bankruptcy Court, W.D. Missouri, W.D.
September 22, 1982.
*241 James R. Schurman, Kansas City, Mo., for I.I. Ozar.
Stephen B. Strayer, Kansas City, Mo., for Richard Gray.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT FOR PLAINTIFFS AGAINST THE DEBTOR CORPORATION AND RESPONDENTS GRAY IN VARIOUS SUMS
DENNIS J. STEWART, Bankruptcy Judge.
This is an action initiated by a customer of the debtor corporation who, as of the time of the conversion of these former chapter 11 proceedings to chapter 7 proceedings, had paid all or part of the price of certain merchandise but never received that merchandise. The court of bankruptcy has treated the action thus initiated as a class action in favor of all customers who had paid the chapter 11 debtor for merchandise which they did not receive.[1]
*242 The hearings and inquiries which have accordingly been conducted by the court to determine (1) the membership of the plaintiff class and the amount each has paid for merchandise which he or she has not received and (2) the disposition of these monies.
It has been the contention of the trustee in bankruptcy throughout these proceedings (1) that the class action is improper and (2) that, even if monies paid by members of the plaintiff class can in fact be traced into the bankruptcy estate, the class members must nevertheless be relegated to status of general unsecured claimants.[2]
The court, nevertheless, in the exercise of its duty and power to ensure that a class action is properly prosecuted, even in the temporary absence of a proper class representative,[3] has made successive efforts to ascertain the composition of the class and to trace the monies which they paid for merchandise which they did not receive into the estate or elsewhere. To this end, the court has set successive hearings, but has been frustrated at several junctures in the proceeding, first by the withdrawal of counsel for the defendants Gray and then by the refusal of the defendants Gray to retain any successor counsel.
At last, at the hearing set by the court for June 28, 1982, the defendant Richard Gray appeared before the court without counsel and submitted records which purported to show the list of persons who made payments for merchandise which they did not receive. That list is reproduced in the marginal note.[4] It was his contention that the monies thus paid are shown to be traceable to the same $18,500.00 which were in the debtor corporation's bank account as of the date of the conversion of chapter 11 proceedings to chapter 7 proceedings.
A review of the records which were submitted by Mr. Gray only purports to show that the monies collected from the members of the plaintiff class went into the bank account which had the above balance of $18,500.00 in it as of the date of the conversion. But these records hardly purport to show that the monies paid in by the members of the plaintiff class were the same monies as those which remained in the bank account as of the date of conversion. Rather, they only show that those monies went into the bank account; that they were there commingled with other monies; that operating and other expenses were paid out of the bank account, and that, of a much larger total deposited in the bank account over the period of time purporting to be *243 covered by the records, the sum of $18,500.00 remained in the bank account as of the date of conversion.
These facts compel the court to conclude that the monies paid by the would-be purchasers of merchandise from the debtor cannot be traced into the bankruptcy estate and such tracing is the necessary condition for recovery from the estate. See 4A Collier on Bankruptcy ¶ 70.25, pp. 346, 348 (1978), to the following effect:
"Money paid to the bankrupt prior to bankruptcy under a mistake of fact is impressed with a constructive trust that follows it into the hands of the bankruptcy trustee . . . A trust relationship may also be created by conduct . . . One of the more common forms of constructive or involuntary trusts created by conduct is that of the trust ex maleficio  that is, created by wrongdoing. Such a trust usually arises out of the conversion of money or property belonging to another. Where the existence of the trustee will be ordered to turn over the property or proceeds, subject, of course, to the beneficiary's discharging the burden of tracing the trust property." (Emphasis added.)
Accordingly, the plaintiffs cannot recover from the bankruptcy estate.[5]
Rather, the right of the plaintiffs to recover exists directly against the defendants Gray. The monies paid to the debtor corporation by the would-be purchaser of merchandise was paid subject to return in the event the merchandise were not delivered. As such, it constituted a special fund which should not have been commingled with the other monies of the debtor corporation before the delivery of the merchandise.[6] Under the governing authorities, such commingling constituted conversion of the money of the plaintiffs.[7] Even though the money was converted to the use and benefit of the debtor corporation, the managing officers and agents of the corporation, the Grays, who effected the conversion, are jointly and severally liable to the plaintiffs for the conversion. See Matter of Transport Clearings-Midwest, Inc., 16 B.R. 890, 895, 896 (Bkrtcy.W.D.Mo. 1979), to the following effect:
"`By the great weight of authority it is recognized that officers of a corporation are personally liable, or are jointly liable with the corporation, to one whose money or property has been misappropriated or converted by them to the uses of the corporation, although they derived no personal benefit therefrom and acted merely as agents of the corporation  the theory being that an agent cannot escape the consequences of his tort by the fact that he committed the tort as agent for his principal.' Anno., Personal Liability of Corporate Directors or Officers to Third Persons for Restitution, or for Damages for Conversion, Under Circumstances Rendering the Corporation Itself Liable, 152 A.L.R. 696, 705 (1944).
"`Of course, defendant's liability did not depend upon his having derived any personal benefit from the alleged conversion.' Darling & Co., v. Fry, supra, [24 S.W.2d] at 724. A corporate officer was held liable for conversion of the plaintiff's money to pay other corporate debts for which the officer bore no personal liability in Patrons Bank & Trust Co., v. Shapiro, 215 Kan. 856, 528 P.2d 1198 (1974). `The debt . . . would seem to have been created by his appropriation or defalcations while acting as an officer of the bankrupt corporation . . . whether or *244 not he profited personally by the transaction.' Kaufman v. Lederfine, 49 F.Supp. 144, 145 (S.D.N.Y.1943)."
In this case, it was the defendants Gray who determined during the relevant time periods how the monies in the custody of the corporation should be handled and disposed of. Consequently, they participated in the tort of conversion and are therefore liable to the plaintiffs for the value converted.[8]
The court in this action has not been able to conduct a hearing to determine whether the conversion was wilful and malicious within the meaning of § 523(a)(2) of the Bankruptcy Code. Further, that issue has not been relevant to the action at bar because the defendants Gray are not themselves debtors in title 11 proceedings. If it becomes relevant, a hearing on the issue may be conducted at a later time and a judgment on any future issue of dischargeability rendered.
It is therefore, for the foregoing reasons,
ADJUDGED that the plaintiff's claims for reclamation of any monies or property directly from the estate in bankruptcy be, and they are hereby, denied. It is further
ADJUDGED that the plaintiff class members, and each of them, have and recover from the respondent debtor corporation and from Thomas Gray and Pamela Gray, jointly and severally, the sums set out in the marginal note,[9] and that, with respect to the debtor corporation, the indebtedness be, and it is hereby, declared to be nondischargeable in bankruptcy.[10]


                       EXHIBIT "A"
              PRIOR TO CHAPTER 11 PETITION DEPOSITS
Amy Armstrong                 Claim incurred        $222.40
500 E. 3rd St., Apt. 9        March 23, 1980
Lee's Summit, Mo. 64063
W.H. Benton                  Claim incurred         412.00
11308 E. 44th St.             March 7, 1980
Kansas City, Mo. 64133
Terry Lee Boone               Claim incurred         418.56
1508 E. 43rd St.              March 2, 1980
Indep., Mo. 64055
Troy Brantley                 Claim incurred           -0-
24401 W. 86th Terr.           March 26, 1980
Olathe, Ks. 66061
Anthony Brzezinski            Claim incurred         792.00
2404 W. 38th Ave.             September 6, 1979
Kansas City, Ks. 66103
Faye and Nick Cavlovich       Claim incurred         256.68
9132 E. 43rd Terr.            January 28, 1980
Kansas City, Mo. 64133
Bob DeMay                     Claim incurred           -0-
3901 Queen Ridge              February 22, 1980
Indep., Mo. 64055
W.E. Dummit                   Claim incurred         568.63
Route 1, Box 275              December 10, 1979
Gardner, Ks. 66030
David Etter                   Claim incurred           -0-
16005 W. 154th St.            December 14, 1979
Olathe, Ks. 66061
Kyle and Brenda Fitzgerald    Claim incurred         422.83
8917 W. 101st St.             January 18, 1980
Overland Park, Ks. 66212
Judy Galate                   Claim incurred         500.00
509 Myrtle                    March 13, 1980
Kansas City, Mo. 64124
Patricia C. Hanks             Claim incurred         200.00
10812 W. 56th Terr.           October 30, 1979
Shawnee Mission, Ks. 66203
Omar Hazley                   Claim incurred         300.00
8600 E. 50th Terr.            January 10, 1980
Kansas City, Mo. 64129
John Heath                    Claim incurred         501.72
9409 E. 84th St.              February 17, 1979
Raytown, Mo. 64138
Patricia Henderson            Claim incurred         100.00
7820 Grant, # 14              March 30, 1980
Overland Park, Ks. 66201
Thomas J. Houston             Claim incurred         848.65
1902 Peach                    October 21, 1979
Higginsville, Mo. 64037
Kansas City Foreign Car       Claim incurred         900.00
Parts & Salvage               February 28, 1980
1301 N. Century Dr.
Kansas City, Mo. 64120
Joseph Martinez               Claim incurred          54.75
2112 Taylor Dr.               May 1, 1980
Olathe, Ks. 66062
Gayle Newman                  Claim incurred         219.75
12613 W. 104th Terr.          December 18, 1979
Olathe Park, Ks.
Susan Prather                 Claim incurred         367.24
13401 Winchester              February 2, 1980
Grandview, Mo. 64030
*245
                        EXHIBIT "A"
           PRIOR TO CHAPTER 11 PETITION DEPOSITS
Robert L. Smith                   Claim incurred        33.76
5103 Long Dr.                     January 4, 1979
Shawnee, Ks. 66216
Jesse T. or Anita Stenner         Claim incurred       226.27
Route 1, Box 169                  December 7, 1979
Kearney, Mo. 64060
William R. and Kathleen Venable   Claim incurred        65.00
3941 W. 98th St.                  January 12, 1980
Overland Park, Ks. 66207
Nancy C. Victor                   Claim incurred       206.99
7013 Gillette                     January 30, 1980
Shawnee Mission, Ks. 66212
Alan W. Viebrock                  Claim incurred       206.56
4815 W. 55th                      March 21, 1980
Roeland Park, Ks. 66205
C.R. Warren                      Claim incurred       114.96
16601 Lamar                       February 17, 1980
Stilwell, Ks. 66085
               AFTER CHAPTER 11 PETITION DEPOSITS
Steve Able                        Claim incurred      $186.15
7708 W. 60th Terr.                August 1, 1980
Overland Park, Ks. 66202
G.R. Allan                        Claim incurred       100.00
9510 Halsey, Apt. 204             May 5, 1980
Lenexa, Ks. 66215
Robert Baker                      Claim incurred       100.00
5225 Brookwood                    August 1, 1980
Kansas City, Mo. 64130
H. Bass                           Claim incurred       400.00
Box 224                           September 27, 1980
Mayview, Mo. 64071
H. Berry                          Claim incurred       120.00
5607 Garfield                     September 21, 1980
Kansas City, Mo. 64130
Roger Betts                       Claim incurred       280.00
6018 E. 127th                     June 3, 1980
Grandview, Mo. 64030
Susan L. Brown                    Claim incurred
6624 Grand                        August 29, 1980
Kansas City, Mo. 64113
Sylvester Brown                   Claim incurred        35.00
7350 State                        July 19, 1980
Kansas City, Ks. 66112
Mark Carter                       Claim incurred        46.00
6112 E. 126th St.                 June 20, 1980
Grandview, Mo. 64030
Charles W. Coffman                Claim incurred       202.00
4800 W. 64th St.                  September 1, 1980
Prairie Village, Ks. 66208
Mike N. Connors                   Claim incurred       122.00
10506 W. 73rd                     November 6, 1980
Shawnee Mission, Ks. 66203
David Deutscher                   Claim incurred       102.00
12122 W. 97th St.                 May 17, 1980
Lenexa, Ks. 66215
Ben Douglas                       Claim incurred       200.00
5314 N. Lydia                     August 10, 1980
Kansas City, Mo. 64118
Lillian Frankenfield              Claim incurred        55.92
508 S. Hospital Dr.               November 22, 1980
Paola, Ks. 66071
Lillian Frankenfield              Claim incurred        19.76
508 S. Hospital Dr.               November 22, 1980
Paola, Ks. 66071
Dee Dee Glover                    Claim incurred        20.00
1009 A. Dennis Ct.                January 2, 1980
Olathe, Ks. 66061
W. Harries                        Claim incurred       200.00
6563 W. 49th                      September 11, 1980
Mission, Ks. 66202
Bill Helms                        Claim incurred       616.00
3107 N.E. 65th Terr.              November 8, 1980
Gladstone, Mo. 64119
Bill Helms                        Claim incurred       156.00
3107 N.E. 65th Terr.              December 6, 1980
Gladstone, Mo. 64119
Eagle Enterprises (Leo Hill)      Claim incurred       100.00
5311 Hardey                       July 12, 1980
Raytown, Mo. 64133
Lunnell Hollinshed                Claim incurred       104.16
1908 Washington Ave.              August 6, 1980
Kansas City, Ks. 66102
Greg Joens                        Claim incurred       325.00
4030 W. 98th Terr.                October 26, 1980
Overland Park, Ks. 66207
Steve Joens                       Claim incurred       200.00
4030 W. 98th Terr.                October 24, 1980
Overland Park, Ks. 66207
Jackie Johnson                    Claim incurred       161.04
9244 Wedd                         February 19, 1981
Overland Park, Ks. 66212
Raymond J. Kerrin                 Claim incurred       150.00
1113 Palmer Circle                September 21, 1980
Olathe, Ks. 66061
D. Knudson                        Claim incurred       382.00
441 N. 83rd Terr.                 September 5, 1980
Kansas City, Ks. 66112
Marquita Lee                      Claim incurred       300.00
8540 Walmer                       January 16, 1981
Overland Park, Ks. 66212
Jack Lewis                        Claim incurred       125.00
2959 Jackson                      October 6, 1980
Kansas City, Mo. 64128
Albert J. Lowe, III               Claim incurred       600.20
5121 Oakleaf Dr.                  August 13, 1980
Kansas City, Mo. 64129
Albert J. Lowe, III               Claim incurred
5121 Oakleaf Dr.                  August 13, 1980
Kansas City, Mo. 64129
Virginia McGrew                   Claim incurred       150.00
R.R. 3, 259C                      June 10, 1980
Leavenworth, Ks. 66048
Stephen McGuckin                  Claim incurred        80.00
1118 Penntower                    September 30, 1980
3100 Broadway
Kansas City, Mo. 64111
Phyllis J. Mejia                  Claim incurred        60.00
966 S. 65th St.                   September 19, 1980
Kansas City, Ks. 66111
Louise Mimms                      Claim incurred       100.00
9901 Rosehill Rd.                 June 1, 1980
Lenexa, Ks. 66215
*246
                           EXHIBIT "A"
              AFTER CHAPTER 11 PETITION DEPOSITS
Louise Mimms                      Claim incurred      10.00
9901 Rosehill Rd.                 June 1, 1980
Lenexa, Ks. 66215
Cheryle Mitchell                  Claim incurred      25.00
8258 Monroe Dr. Apt. A            October 23, 1980
Kansas City, Ks. 66112
Harold Monlowe                    Claim incurred      50.00
7119 Myrtle                       August 13, 1980
Kansas City, Mo. 64132
Walter Randolph                   Claim incurred     100.00
8800 Bristol                      June 23, 1980
Kansas City, Mo. 64138
Bobby Richardson                 Claim incurred      200.00
Sue Blackburn                    December 1, 1980
8816 Flora
Kansas City, Mo. 64131
D. Reed                           Claim incurred      50.00
7218 E. 87th Terr., Apt. 302      September 14, 1980
Kansas City, Mo. 64138
Mary Reed                         Claim incurred      30.56
13917 Summertree                  August 30, 1980
Olathe, Ks. 66061
Michael Rodman                    Claim incurred     150.00
Box 354                           October 26, 1980
LaCygne, Ks. 66040
T. Smith                          Claim incurred     203.76
Route 2, South Madison            September 18, 1980
Raymore, Mo. 64083
Gary Stamps                       Claim incurred     100.00
5629 E. 40th                      July 7, 1980
Kansas City, Mo. 64130
Shirley Standrys                  Claim incurred     458.00
7508 W. 63rd St.                  June 16, 1980
Overland Park, Ks. 66202
Richard Stroud                    Claim incurred     276.00
619 E. 3rd St.                    November 17, 1980
Garnett, Ks. 66032
Greg Taylor                       Claim incurred     250.00
4425 Lane                         January 16, 1981
Olathe, Ks. 66061
Dee Vincent                       Claim incurred      50.00
6925 Cener                        August 19, 1980
Shawnee, Ks. 66216
Bobbie R. Watts                   Claim incurred      50.00
7200 Norton                       June 11, 1980
Kansas City, Mo. 64132
Larry Wise                        Claim incurred     350.00
9220 Rose Hill, Apt. 7            August 1, 1980
Lenexa, Ks. 66215

NOTES
[1]  The defendants Richard and Pamela Gray have objected to the institution of this action by means of a show cause order rather than by means of the process described in Rule 704 of the Rules of Bankruptcy Procedure. But it has long been recognized in the bankruptcy context that show cause orders are sufficient substitutes for process, conferring all the notice which is necessary. "(A)n order to show cause (is) . . . in the nature of process." 2 Collier on Bankruptcy para. 24.39(1), p. 796 (1976). In actions which are brought to gain judgment for money or property against a debtor or an officer or director of a debtor corporation, it has been held that "(t)he referee may make the essential investigation . . . and for such purpose may cite the claimant to show cause." 2 Collier on Bankruptcy para. 23.07, p. 524 (1976).

The court also finds that the prerequisites for a class action exist in this case as they are set out in Rule 23, F.R.Civ.P. The class representative has filed a complaint for relief and has thereby adequately prosecuted the class action. Although he failed to appear for the subsequent hearings, it was never shown that he was not a proper class representative and maintenance of the class action in his name was therefore proper. See, e.g., Goodman v. Schlesinger, 584 F.2d 1325, 1332, 1333 (4th Cir.1978). The only requirement for the class action certification which offers any trouble in this case is numerosity of the class. In this respect, as to the number of claimants which warrant the class certification, "no hard and fast number rule can or should be stated, since `numerosity' is tied to `impracticability' of joinder under the specific circumstances." 3B Moore's Federal Practice para. 23.05(1), pp. 23-150, 23-151 (1982). In this case, the impracticability of joinder, when the members of the class are all claimants of relatively small sums which, if sought individually, would likely be consumed by the costs of litigation, is the crucial issue requiring class certification in this case. Further, since this action is basically one affecting the dischargeability of an indebtedness, it is basically one in equity and the judgment is in the form of one declaring the indebtedness to be nondischargeable in bankruptcy. Therefore, the class may be, and is hereby, certified under the provisions of Rule 23(b)(2), F.R.Civ.P., as one in which "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final . . . declaratory relief with respect to the class as a whole." In ruling on the dischargeability of the judgment with respect to the corporation, the court also has jurisdiction to rule on the liability and, therefore, on the joint and several liability of the co-defendants before the court as a matter ancillary to the dischargeability determination. See sections 1471(b), (c), Title 28, United States Code. Both Richard and Pamela Gray are before the court by reason of the service of the show cause order upon their counsel, who then represented them both, even though he has since withdrawn as their counsel.
[2]  There is authority for the position of the trustee in this respect. See 4A Collier on Bankruptcy para. 70.25, pp. 346, 348 (1978), to the following effect: "Money paid to the bankrupt prior to bankruptcy under a mistake of fact is impressed with a constructive trust that follows it into the hands of the bankruptcy trustee . . . A trust relationship may also be created by conduct . . . One of the more common forms of constructive or involuntary trusts created by conduct is that of the trust ex maleficio  that is, created by wrongdoing. Such a trust usually arises out of the conversion of money or property belonging to another. Where the existence of the trust has been established, the bankruptcy trustee will be ordered to turn over the property or proceeds, subject, of course, to the beneficiary's discharging the burden of tracing the trust property." But, as is further noted in the text of this memorandum, the monies paid by the members of the plaintiff class cannot unfailingly be traced with any certainty into the monies which are currently in the estate. "Where the property involved, or its proceeds, has been intermingled with other goods or funds of the debtor's, the owner must definitely trace that which he claims is contained in the assets of the estate. It is not enough to show generally that the property or the money representing sales of the property was added to the debtor's assets at the time of acquisition. The goods sought to be recovered must be definitely traced into the property of the estate, or the proceeds thereof must be traced to a particular fund or to specific property in which it was invested. Upon failure to do this, the bailor, principal, or consignor becomes only a general creditor with the same rights appertaining to other general creditors." 4 Collier on Bankruptcy para. 541.08, p. 541-44 (1982).
[3]  See note 1, supra.
[4]  See Exhibit "A" attached hereto.
[5]  See also 4 Collier on Bankruptcy para. 541.08, p. 541-44 (1982), the relevant substance of which is quoted in marginal note 2, supra.
[6]  The money which was paid to the corporation and the defendants Gray by the would-be purchasers could not become the property of the corporation until delivery of the furniture. It was only on deposit with them as bailees of the money. See, e.g., Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977), to the effect that money can constitute a subject of conversion if it is money in a special fund designated for a special purpose.
[7]  "The act of wrongfully mixing the property of one person with that of another so that the property cannot be identified is an act of conversion, especially where coupled with the defendant's use of the mixed property . . ." 18 Am.Jur.2d Conversion para. 51, p. 189 (1965).
[8]  The measure of damages is the amount of money converted. Further, in order to give the injured party full indemnity, interest may be allowed from the date of conversion. Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628 (Mo.1966).
[9]  Plus interest at the legal rate from the respective dates on which the claims were incurred. See Exhibit "A" attached.
[10]  See section 727 of the Bankruptcy Code generally denying discharges to corporate debtors.
