Granger v. Empire State Surety Co.

116 N.Y.S. 973 | N.Y. App. Div. | 1909

Kruse, J.:

It is urged on behalf of the defendant that none of the moneys collected and misappropriated by Bitter and Stone is covered by the bond because the default- did not arise out of any acts of the ' employees within the direct scope of their duties as salesmen. It is contended that the duty of .a salesman does not include that of collecting the purchase price of goods sold, when the sales are made as they were made by these employees; and that as regards the goods stolen, no recovery can be had for the purchase price thereof, for the reason that Bitter and Stone were never intrusted with the delivery of the goods, nor ever had possession of the goods rightfully.

If it be true that the bond contemplated that the duties of salesmen did not include either having possession of the goods or receiving the purchase price, it is difficult to conceive any purpose in making the bond at alb Numerous cases are cited by counsel for the respective parties, but in none of them is the obligation and the circumstances so like tins case as to afford much light upon the question here presented.

In view off the absence of anything in the bond defining the duties of these salesmen and their actual duties at the time the bond was given, as indicated by the way in which the sales were made to the customers of these salesmen, and the purchase price received by them for the goods so sold, it is a reasonable conclusion, as it seems to me, that the bond was intended to cover the moneys received by Bitter and Stone for goods sold to their designated customers, whether sold upon orders taken by them personally, or given directly to the plaintiffs.

But I am unable to see how the defendant is liable for the purchase price of goods stolen by Bitter. The fact is conceded that the plaintiffs never intrusted the delivery of the goods to him, or that he ever rightfully had them in his possession. If the company is only liable for such acts as were within the direct scope of his duties as a salesman, and those duties did not require him to have possession of the goods, the wrongful act was not committed in connection with his employment. Counsel for the plaintiffs assumes that in connection with their duties the salesmen had access to the place where the goods were stored; that they were able to go about the plaintiffs’ premises unquestioned, and that they handled the goods within the store; but the record is entirely devoid of any such proof, and, as it seems to me, the facts as stipulated are quite to the contrary.

As regards the money received for the goods and embezzled by the employees, it is different. The bond seems to contemplate that the employees would háve possession of moneys belonging to the plaintiffs, since the defalcation must amount to an embezzlement or larceny to make the defendant liable, according to the terms of the bond.

The amount for which Bitter defaulted is $929.76, and the amount of Stone’s defalcation is $1,388.48, making in all $2,318.24. The amount collected., by Bitter for goods stolen and sold by him is $684.16, leaving a difference of $1,634.08, .for which the defendant is liable.

Upon the facts which the trial court found, none of which is in dispute, as the attorneys for the respective parties stipulated the facts, final judgment may be directed here. (Dixon v. James, 181 N. Y. 129.)

The judgment should, therefore, be modified by increasing the amount of the plaintiffs’ recovery for damages to $1,634.08, with interest thereon from June 8, 1904, the date specified in the judgment, and as so modified affirmed, but as neither party has been entirely successful here, neither should recover costs against the other upon this appeal.

All concurred, except Williams, J., who dissented.

Judgment modified by increasing the amount of plaintiffs’ recovery to the sum of $1,634.08, with interest thereon from June 8, 1904, and as ■ so modified affirmed, without costs of this appeal to ■ either party.