177 Wis. 1 | Wis. | 1922
The questions raised by the assignments of error in this case relate entirely to the interpretation and application of clause 4 to the facts in this case, the facts being practically undisputed. The agreement of the defendant company is to “reimburse the employer for any loss, not exceeding twenty thousand dollars, . . . which the employer, shall have sustained by reason of any act or acts of fraud, dishonesty, forgery, embezzlement, wrongful abstraction, or wilful misapplication. . . .” The language of the fourth condition is that the employer and the company shall share any recovery in proportion that the amount of the loss borne by each bears to the total amount of the loss. Under the terms of this bond the only loss which the defendant company bears is that which it sustains by reason of the payment contracted to be made. Until such paym'ent has been made the defendant company has borne no loss. The plaintiff bank sustained its loss when the embezzlement took place. The amount which it may claim from the defendant company is the amount of the embezzlement less the amounts returned by or recovered from the defaulter. If, after the payment by the defendant company of a loss, a recovery is thereafter made, then in accordance with the terms of the fourth condition the recovery would be shared in the proportion that the amount of the loss borne by each of the parties bears to the total amount of the loss. We are of the opinion that “the total amount of loss” is the loss which the defendant company may be called upon to pay, not exceeding the amount of its bond. That therefore it is the total amount of the embezzlement less any recoveries
By the Court. — Judgment affirmed.
