118 Wis. 438 | Wis. | 1903
In approaching the crucial questions of fact in this case, an understanding of the general situation is a preliminary necessity, especially as the two litigants base their respective arguments upon radically different estimates thereof. The defendant proceeds upon the theory that plaintiff, as executive head of the business, was bound to know of and control every detail of every department thereof, and is liable for damages resulting from any act or omission which would have been negligent in one charged with the duty of such specific act. Plaintiff, on the other hand, contends that he is under no responsibility outside of certain defined departments of the business, and especially that the field'of activity delegated to the secretary, either by express by-law or the custom of the corporation, was wholly outside of his responsibility; that he and the secretary were co-ordinate officers, each independent and beyond the control of the other, and each responsible only for his own acts and omissions. Cases are cited bearing upon the measure and limits of liability upon these conflicting theories. Neither is entirely right, according either to evidence or finding. Plaintiff was not a mere co-ordinate of the secretary, each having entire independence of the other. He was the head of the business, charged with its entire general management, including finances, accounts, and collections; but, on the other hand, the secretary and the bookkeeping force working under him were not a mere, implement selected and entirely controlled by plaintiff. The secretary and his account books were existing institutions when plaintiff took office, created by the board of directors, and in detail, at least, not controllable by plaintiff, except by appeal to that board. They constituted, with the secretary’s authority to pay out money, one of the conditions under which plaintiff must manage the business. Nevertheless, the conduct of that department being one of the elements involved in successful prosecution of the business, we have no
Taking up first defendant’s defensive contention that plaintiff has failed to perform his contract of service, by reason of the devotion of some portion of his time and attention to other affairs — especially the care of his mother’s property and investments, but also the performance of his duties as vice-president of a bank, and the looking after the finances of the sadiron business — we cannot feel justified in disturbing the finding of the court that no substantial breach, to the injury of the defendant, occurred. Of course, an agreement “to give his full time to the company’s service” is, in its nature, ambiguous. It certainly does not require twenty-four hours a day of an employee’s time, nor, indeed, every moment of his waking hours. Mobile & K. C. R. Co. v. Owen, 121 Ala. 505, 25 South. 612. On the other hand, it undoubtedly does-require that he shall make that employment his business, to the exclusion of the conduct of another business such as usually calls for the substantial part of a manager’s time or attention. We cannot think, however, that the business man who undertakes to make the affairs of a corporation or of a
As to the failure to collect from the electric light company some $600 of interest which the court finds was justly owing "to the defendant, we also agree with the trial court that
Another basis of counterclaim which was repudiated by the-trial court is tbe failure to enforce payment from his mother’s estate of more than six per cent, annual interest upon her-overdrafts. That the company suffered loss thereby is predicated upon the alleged fact that at tbe time of any such overdrafts the company was paying a higher rate of interest to-the bank; but, as pointed out by the statement of facts, the company was also at all such times in tbe enjoyment of con
We also concur with the trial court in finding plaintiff not liable for the loss of the account against the cash register company. When he had directed it to be collected, and was, in effect, informed that it had been, we aré not prepared to hold him negligent in not discrediting the secretary’s statement, and proceeding to investigate the assumption of the debt by Olson.
The foregoing is all that seems to be necessary in consideration of the defendant’s appeal, upon which, therefore, we find no error prejudicial to it, and should affirm the judgment, if only that appeal were before us.
2. Turning now to the plaintiff’s appeal, which is from the allowance of damages against him upon the overdraft of the secretary, Lund, we must deem it sufficient to say that the finding of the trial court that plaintiff was guilty of negligence in failing to discover and thus in permitting the secretary to withdraw funds of the company in excess of his salary, through a period of some seven years — the secretary being pecuniarily irresponsible, though of excellent reputation and apparently economical habits — is supported by the evidence. We should not sustain the view that one occupying the position of general manager must at all times be cognizant with the condition of every account upon the books, even'
At this point, however, we come in contact with a peculiar item, of $409.70, entered upon the books by Lund on the day of his discharge, the items composing which are not in evidence, but are stated to be a number of turned accounts, where Lund had receipted the accounts of debtors to the company in consideration of the discharge of his own indebtedness to such debtors. These he had never entered upon the books, and of them plaintiff never had any knowledge, nor, so far as the evidence goes, information of any fact to put him upon inquiry. We find ourselves unable to discover anything of negligence on plaintiff’s part to which can be ascribed the fact that these particular accounts were lost to the company, if they were lost. Such transactions were in no way called to his attention by any entry within his reach. They transpired wholly between Lund and the outside parties. Only by accident would any one of them be likely to come to plaintiff’s knowledge. To impute such knowledge to him would be to charge him with' a duty of omniscience. Further, however, there is no proof of damage to the defendant. The evidence does not disclose when these transactions took place, nor that the several debtors were not, even up to the time of the commencement of the present action, wholly solvent; neither does it disclose that'the indebtedness of any of them to the defendant had become barred by the statute of limitations. It hardly needs to be stated that such transactions as those of Ltind with debtors of the corporation could have no possible effect in discharging their debts to it. The
Another item included in the so-called Lund overdraft is a charge of $145.79 on turning account with one Dow, made not until January 10, 1899. At that time Dow appeared as a debtor on account to the defendant, and an unexplained entry was then made, charging the above amount to Lund. There is not the slightest evidence to show that Dow parted with any consideration or changed his position in any way by reason of such book entry, or that it was made in pursuance of any agreement with him to which plaintiff was a party. No reasonable explanation is made by defendant of any theory on which it can be claimed that defendant lost anything thereby, and we find ourselves unable to discover any evidence to warrant the conclusion that Dow was any less, liable to defendant after than before such entry, nor, if he is, how the plaintiff’s acts have aided to that result. This item was erroneously included in the damages allowed.
Another error, obviously clerical, has attracted our notice, which, although not mentioned by counsel, is covered by the general language of both an exception and an assignment of error, so that we must correct it. It consists in adopting as the increase of Lund’s overdraft between September 1, 1897, and February 8, 1898, the sum of $921.25, while the true increase was only $710.77, even including the turned accounts. This resulted from deducting an interest charge of $210.48 from the ledger balance of September 1, 1897, to get the true amount of overdraft to that time, and in omitting
From tbe foregoing, it results tbat tbe judgment is erroneous, to tbe prejudice of plaintiff, in tbe sum of tbe above-mentioned improper allowances, plus tbe interest thereon as included in tbe judgment! Deduction must therefore be made from tbe allowance on counterclaim as follows, as of tbe date of tbe findings, June 11, 1902:
Turned-accounts item. $409 70
Clerical error. 210 48
Interest on both, February 8, 1898, to June 11, 1902. 161 55
Kobe Dow account, with interest as in findings. 175 75
Total deductions. $957 48
This deducted from tbe $4,510.83 awarded defendant on its counterclaim leaves as tbe true allowance, $3,553.35, which, being set off against tbe $3,630.77 allowed on plaintiff’s cause of action, results in a balance of $77.02, for which, with interest from June 11,- 1902, plaintiff should have judgment against defendant.
By the Court. — On plaintiff’s appeal tbe judgment is reversed, and cause remanded with directions to enter judgment in plaintiff’s favor for seventy-seven and fW dollars ($77.02), with interest from June 11, 1902, and for bis costs. Defendant will take nothing on its appeal.