72 F. 484 | 2d Cir. | 1896
(after stating the facts). 1. The first notification to the surety company in this case, as in the other, was sent'May 23, 1892, and the proofs of loss transmitted June 24, 1892. There was a similar conflict of evidence as to the daté when the receiver acquired knowledge of Collins’ acts of fraud or dishonesty, and the question whether notice and proofs of loss were sent with reasonable promptness was left to the jury under a charge more favorable even to the defendant below than was the charge in the O’Brien Case. In view of the evidence and of the instructions given by the court, plaintiff may fairly be given the benefit of the presumption that the jury found discovery to have been made as late as “a few days before May 28, 1892.” It is contended that this was more than six months
2. It is next contended that the alleged ioss was not set forth i* the proof of claim. In this case, as in the oilier, several distinct acts of fraud, with consequent loss, were declared upon, but the court left to the jury only the transactions of October 13 and 14, 1891. "What those were will be found fully stated in the opinion in the other case. So much of the proof of claim as refers to these transactions is as follows: In an affidavit of the receiver dated May 31, 1892, and inclosed in a letter making demand, are these paragraphs:
“That on the l.ltli (lay of October, 1891, he, the said ,T. W. Collins, as president of said bank, and upon the representation that he was acting in behaii: of «aid California National Bank of San Diego, obtained a loan from the United States National Bank of New York of twenty-five thousand dollars upon a note of the California National Bank of San Diego, and by rediscounting ihe assets of said bank, and took and applied the said sum of $25,000, then and (here the assets of said bank, to his individual use, and embezzled said sum.
“That on the same day, to wit, on October 13, 1891, said .T. W. Collins, while president of said hank, and acting as such president, and upon the representation that he was acting in behalf of the said bank, obtained from (he Western National Bank oí New York a loan of $20,000 upon a note of said hank, made payable to himself, and collateralized with assets of said bank; and then and there, as such president, receiving said sum of 820,000, and in behalf of the said California. National Bank of Ran Diego, appropriated the sana; to his individual use, and embezzled the. same. * * * Affiant says that none of said sums of money so as aforesaid by said .1. W. Collins abstracted and embezzled. nor any part ihereof, were ever repaid or returned to said bank.”
On the very day (May 33, 1892) this affidavit was sent from San Diego, the surety company wrote from New York, inclosing two claim blanks, and asking to have itemized thereon any claims the receiver might have to present under the bonds of Collins and of O'Brien. In reply thereto the receiver wrote, inclosing “two affidavits in regard to the embezzlement of the late J. W. Collins and George N. O’Brien, furnished after consultation with my legal adviser, as giving information fuller than I otherwise could do by using the blank sent me.” Receipt of these two affidavits was duly acknowledged duly 8, 1892, but most careful examination of the record fails to disclose them among the exhibits. The letter inclosing them was marked “Exhibit 28,” but, singularly enough, these affidavits seem not to have been offered, or their
Very many other assignments of error are found in the record, hut, as none of them are discussed in the brief of plaintiff in .error (except, some which are referred to in the opinion in the O’Brien Case), it will be unnecessary to rehearse them here. It is sufficient to say that they have been examined, and found to be unsound.
One; point, hoAveA'er, Avliich is not discussed upon the brief should be referred to.
•‘i. The court charged the jury that the “plaintiff1 has established a prima facie ca.se against the defendant, because he gave the written statement of loss, and subsequently transmitted to the defendant a copy of the account upon which it was based.” To this, and to its repetition in other words, defendant duly excepted. This part of The charge was based upon a provision of the bond which reads as follows:
“It being- understood that a written statement oí such loss, certified by the duly-authorized officer or representative of the employer, and based upon the accounts of the employer, shall be prima facie evidence thereof.”