111 So. 258 | La. | 1927
Plaintiff sues as the duly qualified receiver of the Co-operative Stores, Inc.
He alleges, in substance, that George Edward Dixon was the general manager of said corporation, and had complete charge of its property and money; that said Dixon absconded without accounting to the corporation; that, upon taking charge as receiver, he caused the books of said corporation to be examined by a duly qualified public accountant; that the result of said examination (which he annexes) showed an apparent shortage on the part of said Dixon of at least $8,738.35; and he charges that said Dixon stole and embezzled said sum out of the property and funds of said corporation.
He further alleges that the United States Fidelity Guaranty Company issued to the *857 corporation a fidelity bond guaranteeing reimburse said corporation, up to the sum of $3,000, for any pecuniary loss occasioned by any act or acts of larceny or embezzlement on the part of said Dixon in the performance of his duties as general manager of said corporation, and that said embezzlement occurred whilst said fidelity bond was in force.
Wherefore plaintiff prays for judgment against said Dixon and said United States Fidelity Guaranty Company, in solido, for the full sum of $3,000.
"The exception of no cause of action, and doubtless the judgment of the district court, are founded upon the principle, if not the fact, that the petition does not allege any act or acts of larceny or embezzlement, but the pleader merely contents himself with alleging the conclusion that larceny or embezzlement has been committed. We contend however, that it is necessary for the petition to allege such acts or facts as would justify the court in reaching the conclusion that larceny or embezzlement had been committed. In other words, neither larceny nor embezzlement is a fact; it is a conclusion from facts."
We think that the facts alleged suffice for a court to infer therefrom that Dixon embezzled the property and money of the corporation to the extent of said shortage; for the inference that a person has embezzled property or money by unlawfully converting it to his own use may well be drawn from the fact that he has not paid the price in due course to the owner, or that he has not accounted for the money which he has received. O'Brien v. United States,
Our conclusion is that the petition discloses a cause of action. And whether or not plaintiff will succeed in his proof is a matter which appertains to the merits only.