125 Wis. 390 | Wis. | 1905
Certain general views and conclusions will dispose of a considerable number of the very many objections raised by appellant to a recovery upon the guaranty bond, without the necessity of detailed consideration. Among such is the rule that neither falsity of any of the statements contained in plaintiff’s so-called “application,” whether they be deemed representations or warranties, nor any omission upon
A careful examination of the evidence discloses some which the jury might have deemed credible and sufficient to support their findings upon the first, second, fourth, fifth, and seventh issues mentioned in the statement of facts. True, as to several of these, apparently inconsistent statements were made by the plaintiff, but such inconsistencies were for the jury to weigh and resolve, and in their judgment to reach the real truth of such matters, and we are unable to say that there was ■entire lack of credible evidence to support their conclusions above catalogued.
The only remaining pleaded defense is the alleged failure •of the plaintiff to limit the amount of his money in the hands •of O’Brien, at any one time, to about $50. On this question the jury found with the defendant. The trial court ignored that finding upon two grounds, stated in his opinion: First, that the statement in the application on this subject was so indefinite as to refute the idea that it was a warranty; but, •secondly, that the finding was not supported by the evidence in a sense to defeat recovery, for the reason that only a general conduct of the business, whereby customarily a larger amount of money was allowed to be in O’Brien’s hands, could have such result, and that there was no evidence that such
Another subject upon which much is said in appellant’s: brief is tbe failure of plaintiff to immediately notify tbe defendant upon discovery of O’Brien’s misconduct. His suspicions were not aroused until about tbe 18th of June, when-be immediately went and found O’Brien in an unintelligible-state of intoxication, made effort to regain from him tbe prop-
The only remaining question is as to the proof of O’Brien’s embezzlement. On this subject his entries, reports, and statements made in the course of his duties in the guarantied employment are admissible against the surety. Stephens v. Shafer, 48 Wis. 54, 65, 3 N. W. 835; Clark v. Wilkinson, 59 Wis. 543, 551, 18 N. W. 481; Bank of Tarboro v. Fidelity & D. Co. 128 N. C. 366, 38 S. E. 908; Lancashire Ins. Co. v. Callahan, 68 Minn. 277, 71 N. W. 261. Proof was made of certain such statements and admissions from which, in connection with the accounts and records kept by plaintiff, he claimed to be able to state the amount, both of money and goods, which O’Brien had appropriated to his own use. Besides this, it was shown that defendant’s agent, upon mutual 'investigation of such accounts and records, concurred with plaintiff in finding the shortage as stated and allowed by the judgment. This was sufficient to warrant’the jury in finding embezzlement to that amount. We find no reason to reverse.
By the Court. — Judgment affirmed.