30 N.Y.S. 232 | New York Court of Common Pleas | 1894
This action was brought against one George Coon upon a bond which he had executed as surety for one Frederick Joseph, an employé of the plaintiff, for moneys collected by him while in the employ of the company from the lessees of its machines, and not accounted for or turned over. The surety alone is sued in the action, and his liability under the bond is limited b> the sum of §200 and 10 per cent, attorney’s fees, making in all $220-In order to a clear understanding of the questions of law involved in this case, it is necessary to give a somewhat extended statement of the way in which the plaintiff’s business was conducted. From the evidence it appears that any one entering into the employ of the company as a collecting salesman or canvassing collector was required to furnish a bond conditioned for the faithful performance of his duties as such employé, and to account for, pay over, and deliver to the company aH moneys, credits, notes, leases, etc., that might be intrusted to him or come into his possession or under his control by virtue of his employment. The company manufactures and sells, on the installment plan and otherwise, sewing machines owned by it; and it was for the canvassing of new leases of its machines, and for the collection of installments on open accounts, that Joseph was employed as agent. He was given a set of one-dollar, three-dollar, and five-dollar receipt books, and a card prepared somewhat on the plan of a ledger page for each account in his district. When he collected an installment from a lease he was required to issue a receipt for the same, which he signed, and also to enter on the stub corresponding to the receipt the name, date, and amount, etc., as well as on the receipt, which he also signed. Each receipt had a number which corresponded to that of the stub. At the same time he was bound to credit the party making the payment on the card appertaining to that particular lease account. This card enabled all parties at a glance to ascertain the condition of the account at any particular time. Every evening, on the completion of his day’s canvassing, he was required to return to the cashier of the company his receipt books, and the payments indicated by the stubs, and from those stubs entries were made in the company’s cash book, and subsequently posted in the ledger. On the following morning the receipt books were returned
With the exception of the $30 before mentioned, and one or two items of less amount, the plaintiff, on the trial, relied upon the stubs, receipts, and cards made by Joseph in the course of his employment, as proof of his embezzlement; and the first question presented is whether these receipts, stubs, etc., were evidence against the surety. As a general rule, a surety is not bound by the admissions of his principal, and the reason for this is obvious. The surety is bound only for the actual conduct of the principal, and not by what he may have said or done outside of his employment. But to this rule there is one well-defined and long-established exception, and that is in the case of declarations or admissions made by the principal during the transaction of his business and in the course of his employment, so as to become a part of the res gestae, under which circumstances such acts and admissions have always been held admissible against the surety, and binding upon him. The general proposition is thus laid down in Green-leaf on Evidence, § 187:
“In one becoming surety upon a bond conditioned for the faithful conduct of another as clerk or collector, it is held that in an action on the bond against the surety, confessions of embezzlement, made by the principal after his dismissal, are not admissible in evidence, though with regard to entries made in the course of his duties it is otherwise.”
To the same effect, Phil. Ev. (Ed. 1868) p. 436.
In conformity with this exception it has been uniformly held that the statements of a treasurer of a society, made during the period covered by his bond, and in accordance with his duty, were competent and primary against his sureties. McKim v. Blake, 139 Mass. 593, 2 N. E. 157; Bank v. Smith, 11 Allen, 243; Father Mathew Soc. v. Fitzwilliams, 84 Mo. 406; State v. Newton, 33 Ark. 276. So, too, the return of a sheriff on execution has been held to be conclusive evidence of the moneys received by him against his sureties (Crock. Sher. § 46, Cow. & Hill’s notes, 1085; Bagot v. State, 33 Ind. 262; Price v. Cloud, 6 Ala. 248); and his indorsement on the execution of the time of its receipt is deemed conclu
“That, had the principal voluntarily accounted on the principle prescribed by his agreement so to- do, the surety would have been liable for the balance struck. The striking of such a balance would be an admission making part of the res gestae. Indeed, any and every act leading to or connected with it, would be the res gestae themselves, for which the defendant undertook in his covenant.”
But the accounting in that case was compulsory, and made long after the employment had ceased, and was clearly not admissible as part of the res gestae; and the appellate court so held. In Hatch v. Elkin, 65 N. Y. 489, which cited and approved Douglass v. Howland, supra, where a letter written by the principal long after the account was rendered and closed, admitting the correctness of a certain account, and the balance therein stated to be due, it was held on appeal to be inadmissible as against the surety. The court said that:
“Such admissions of the principal were no part of any res gestae, in reference to which the surety undertook in his agreement. * * * Here the statements of the principal were made, not when he was engaged in any transactions as to buying or selling stocks, but after the transactions were all closed.”
We think the case of Machine Co. v. Farrington, 16 Hun, 591, affirmed 82 N. Y. 121, directly in point in this case. There the action was upon a bond executed by one Davis and the defendant as surety. The agent, Davis, was in the employ of the plaintiff company for sale of its machines, and the bond was condi
“It is contended that the declarations of Davis were not evidence that he received the machines, as against the defendant. The proof was .expressly limited to declarations made by him during the period of the consignments and after the execution of the bond in suit, and consisted of admissions made by him of the correctness of plaintiff’s books upon their being exhibited to him. The declarations were, therefore, a part of the res gestae, and were admissible. It would have been otherwise if they had been made after the transactions were closed, for which the simety was bound;” citing 1 Greenl. Ev. § 187; Hatch v. Elkin, 65 N. Y. 489; Bank v. Darragh, 1 Hun, 111; Horn v. Perry, 14 Hun, 409.
In Placer Co. v. Dickerson, 45 Cal. 12, the receipts given by a county treasurer for payment of taxes made to Mm were held to be primary evidence against his sureties of the receipt of such moneys. It has also been held, in an action against the sureties of a justice of the peace for moneys collected by him and not paid over, that letters written while in office to the execution creditor, acknowledging the receipt of the money, etc., were competent evidence against and binding upon Ms sureties. Parker v. State, 8 Blackf. 292. In the case under consideration, the stubs, receipts, and cards were signed and issued by Joseph as agent for the plaintiff at the time of the various transactions, and were contemporaneous with the payments made to him by the lessees. The stubs were filled out by Mm at the same time, and were turned in to the company on the same day, his report of collections, etc., were. They were, in fact, not only part of the res gestae, but they constituted the res gestae themselves, and as such were, in our judgment, admissible in evidence against the surety, and binding upon him. This being the case, the proof is ample to support the judgment rendered by the justice. The stubs acknowledge the receipt of a certain sum of money from one person. The receipts corresponding in number to the stubs acknowledge the receipt of a similar sum from another. This is corroborated by the entries made upon the cards, all in Joseph’s own handwriting; thus clearly showing that he accounted for but one sum received where he had in fact received two of like amount. The broad claim made by Joseph that he had turned in all the money received by him, and in fact had accounted for all the moneys collected by him, was discredited by the admitted fact that he had collected $30, and one or two other smaller sums, without accounting for them; and the justice very properly disregarded the claim. The bond being given for a faithful accounting, and the proof of unfaithfulness being clear, we think the judgment should be affirmed, with costs.