10 P.2d 851 | Kan. | 1932
The opinion of the court was delivered by
Plaintiff brought this action against its treasurer and the surety on his fidelity bond. A jury was waived. The trial court made findings of fact and rendered judgment for plaintiff.. The surety has appealed.
The trial court was unable to find from the evidence whether McAfee in fact purchased such bonds, but did find that he either embezzled the amount of the check then given him in payment of the bonds, or if he purchased the bonds, that he later embezzled the bonds. On September 6, 1929, the association, by appropriate action, directed the purchase of $7,500 worth of federal certificates of indebtedness bearing date of September 16, 1929, and due June 16,1930. About September 30,1929, McAfee advised plaintiff’s secretary that he had received such certificates of the par value of $7,500, and the check of plaintiff association in that sum was given McAfee in payment of such certificates. At the time this check was delivered to him McAfee exhibited to Atkins papers which he represented to be such certificates. The trial court was unable to find whether McAfee purchased such certificates for plaintiff, but found that if he did not do so he embezzled the amount of the check given him for that purpose, and that if he did purchase them he later wrongfully embezzled such certificates. Early in October, 1929, an examiner for the department of the commissioner of building and loan associations, examining plaintiff’s records, found them to show the investment of $5,000 in government bonds and $7,500 in federal certificates of indebtedness, and went to McAfee, as plaintiff’s treasurer, to verify those items. McAfee reported to the examiner that he had, as plaintiff’s treasurer, United States treasury certificates of indebtedness, $5,000, due December 16, 1929; also similar certificates, $7,550.09, due June 15, 1931. On the examiner’s report, showing this in the handwriting of McAfee, was “Above certificates held for safe-keeping,” directly under which, having been placed there by a rubber stamp, was “The People’s State Bank, Fort Scott, Kansas, P. H. McAfee, president.” Plaintiff’s treasurer had never been authorized by its board of directors,
The appellant surety company contends it was error for the court to admit in evidence the declarations of McAfee made to Mr. Hulett, president of the association, in the latter part of May, after McAfee had been apprehended and returned to Fort Scott, for the reason that such declarations were not made during the time of his employment as treasurer, or in connection with his duties as such. In this connection it cites the general rule from 22 C. J. 405 as follows. (We italicize portions emphasized by appellant):
“In cases of suretyship, an admission of the principal, when made in good faith, in connection with the obligations or duties to which the suretyship relates, is competent against the surety, although not to the extent of varying his liability or of determining the rights of several sureties as between themselves. Competent admissions may be made by word of mouth, contained in books or other writings, or evidence by silence or acquiescence. Where the obligation of the surety is for the proper performance by the principal of the duties of an office or a position, the declaration is competent only if made while the principal occupied such office or position; . . . Admissions made prior to the execution of the obligation, or narrative statements made after breach of the obligation, or after expiration of the time for which the surety is held, cannot be received against the surety. . . .”
A number of cases are cited in connection with the various clauses of the text, many of which are quoted from or analyzed by appellant. An exhaustive annotation of cases on the question may be found in 60 A. L. R. 1500 to 1547. A few later cases are: Piggly
The particular statements of McAfee which appellant objects to- and deems incompetent are those which related to whether or not he purchased the securities with the checks furnished him by plaintiff for that purpose, and what he did with them, or how he handled the matter after they were purchased. It is true, as argued by appellant, that it indemnified plaintiff against loss because of McAfee’s acts rather than his conversation; that is, it indemnified against his embezzlements, wrongful abstractions, etc., rather than against what he may have said about it at some time after his services with plaintiff ceased, for what he may have said under such circumstances may have been true or false.
There are several reasons why this testimony was not wrongfully received in evidence in this case. First, McAfee was a party defendant, and the evidence was properly received as against him in any event. Second, it scarcely can be said that McAfee’s duties as treasurer of the plaintiff had ceased at the time of this conversation. It is true the petition alleged that he was plaintiff’s treasurer from the time of his appointment to “about May 1, 1930,” and at the trial there was a stipulation in the same terms. That was the day McAfee absconded, but he had not been succeeded by anyone as treasurer, he had not closed up his books with plaintiff, and on his being brought back to Fort Scott, about three weeks later, which was the first time the officers of plaintiff had an opportunity to talk with him after they had some information of his defalcations, it was perfectly proper for the officers to inquire of him about securities held by him as treasurer for plaintiff. It was his duty to give an account of such securities, and the statements he made in attempting to give such account were directly in connection with his business and his duty to plaintiff. He had not at that time been formally removed as treasurer of plaintiff, nor had any successor been chosen. The bond sued on covered the time of this conversation. Certainly the second bond did, and even the first bond which, as to subsequent transactions was superseded on January 4, 1930, indemnified against
Appellant further contends that since the checks of plaintiff association, signed by the secretary and its president or vice president, were made payable to the People’s State Bank, of which McAfee was president, and since they were given to McAfee, they were of necessity given to him as president of the bank and not as treasurer of plaintiff, and argues that the embezzlements and wrongful misappropriations of the proceeds of these checks were acts of McAfee as president of the bank rather than as treasurer of the plaintiff. This contention lacks merit. The treasurer of the association was the one instructed by its board of directors to purchase the securities. The secretary and president or vice president who signed the checks were not so authorized by the resolution of plaintiff’s board of directors. When McAfee as treasurer of the association notified its secretary that securities which plaintiff had ordered purchased had been received by the bank and were ready to be delivered to the association on payment, the secretary and president or vice president executed plaintiff’s check for their purchase and gave it to McAfee, treasurer of the association,-to use for that purpose. The fact that it was made payable to the bank rather than to McAfee as treasurer
There is no error in the record, and the judgment of the trial court is affirmed.