65 Neb. 65 | Neb. | 1902
The plaintiff commenced an action in the district court of Douglas county by filing its petition upon a promissory note, of which the following is a copy:
“$1,000 Omaha, Nebr., June 7,1894.
“Six months after date we jointly and severally promise to pay to the Smith Premier Typewriter Company, One Thousand Dollars at Omaha, Nebr., value received, with interest at the rate of seven per cent, per annum from date until paid.
(Signed) “E. H. Mayhew, J. J. Boucher, J. T. Daily, F. F. Roose, M. ,H. Hoerner, Frank E. Moores, Rudolph Beul, J. W. Cady, I-I. A. Porten, J. W. Malone, Frank E. Hartigan, M. Wulpi, T. B. Minaban.”
Summons was issued and served upon a part of the signers of said note, to wit, J. J. Boucher, Franklin F. Roose, Mel H. Hoerner, Frank E. Moores, John W. Cady, John W. Malone, Meinrod Wulpi and John T. Daily. No summons was ever served upon any of the other defendants, and there was no appearance in the case except by those last above named. The petition was in the usual form, and the defendants who were served appeared and filed an answer, in which several defenses were pleaded, only one of which concerns us in this inquiry, and is as follows:
“For a further defense in and to said action these defendants allege that on or about the first day of June, 1894, and for several years prior thereto, the above-named defendant, Elisha H. Mayhew, was in the employ of the said plaintiff in the city of Omaha, said county, and state, having full and exclusive charge of the business of said plaintiff in the sale of its typewriters and the collection and receipt of money due to it on account of such sales; that on or about said June 1, 1894, it was discovered that Mayhew had embezzled the money of the plaintiff com
It was further alleged in the answer that before the giving of the said note the said Mayhew had indorsed and delivered to the plaintiff a mortgage upon certain property in Council Bluffs, Iowa, for $1,000; and that it was agreed that the same should be held by the plaintiff, and, in case defendants were required to pay the note in suit herein, said note and mortgage should be turned over to them as
1. It is contended by plaintiff in error that the court erred in receiving certain evidence on the trial of this cause. In a case tried to a court without a jury the admission of improper evidence is not in itself a ground for reversal. This rule is so well established in this state that it is unnecessary to cite authorities in support of it. This being the case, we are not required to consider this assignment of error. It will be presumed that the trial court only considered such evidence as was competent and proper to be considered by him. Whipple v. Fowler, 41 Nebr., 675, 681; Ward v. Parlin, 30 Nebr., 376.
2. As we view this case there is but one question before us for our consideration, which is, is the evidence sufficient to sustain the finding and judgment of the trial court? and we will now proceed to consider that question. The following are the undisputed facts as shown by the record: In the year 1891 the plaintiff established an agency in the city of Omaha for the sale of its typewriter machines and supplies, and placed the defendant Mayhew in charge thereof, with full power and authority to sell its machines
The only point in dispute in this record is whether or not McMurchy told Mayhew, and also told Boucher in May-hew’s presence, that if the note was not given or the money paid within a few days the plaintiff would prosecute May-hew for embezzlement, and send him to the penitentiary; and,"if the matter was thus arranged and settled, no prosecution should be had. The testimony upon this point
Q. Was there anything said in that conversation about the company refraining from prosecuting?
A. Yes, sir.
Q. What was it?
A. McMurchy said that unless the amount was paid forthwith, or immediately secured until the money could be procured vrithin a day or two, criminal proceedings would be at once instituted and Mr. Mayhew would be arrested; and that, of course, if the money should be forthwith paid, or the security furnished, that he. would not be arrested and prosecuted.
Q. What was this proposition that he said he would lay before the company?
A. Whether or not the company would aecept amóte, due in six months or a year, from Mr. Mayhew and his
The witness further testified that he received the note from the attorney of the company, and took it to the other signers, and stated to them, among other things, that May-hew was short with the company about a thousand dollars; that the company was about to prosecute him, but would refrain from doing so if a note with sufficient signers could be procured; and thereupon the others signed the note. The other defendants testified that these statements were made to them. In answer to a direct question the witness said: “It was expressly stated by Mr. McMurchy upon at least one occasion, and I think upon each and every occasion, when the matter came up, that the company would accept this note and would not prosecute Mr. Mayhew. Mayhew was never prosecuted for embezzling from the company.” A letter from the witness to the president of the company, written when the note came due, was received in evidence. In that letter it was stated that the writer and the other signers of the note were induced to sign upon the promise of the company, through McMurchy, that if they should sign, then Mayhew would not be prosecuted. A letter from the president in reply was received in evidence. Therein the writer stated that McMurchy had instructions from the company to prosecute all defaulting employees, but that the company had in this instance instructed him to take a note properly secured instead. On cross-examination of Mr. Boucher, by Mr. De Bard, the following testimony was given:
Q. Did Mr. McMurchy ever promise to you, or say in your hearing, that the consideration of this note was that Mr. Mayhew was not to be prosecuted?
A. He did.
Q. When and where?
A. He said that on the morning after I had submitted to him the proposition of giving a note instead of paying the cash and at the time when he had said that he had received word from the Smith Premier Typewriter Com
Q. Where did that occur?
A. In my office.
Boucher’s testimony was fully corroborated by the evidence of Mayhew. Mr. Moores, one of the defendants, on cross-examination, testified: .
Of course, Avhen I put my name to a piece of paper, if necessary, I expect to make that name good, if possible; but in this case it was done to prevent the Smith Premier Typewriter Company prosecuting MayheAV. I had every confidence to believe that Mr. MayheAV and his friends would pay this amount, and this signing the note Avas but a temporary step to stop criminal prosecution against him.
The testimony of the other defendants urns to the same effect. McMurchy, who testified in the case, denied that he made the statements detailed by Mr. Boucher and Mr. Mayhew. It does appear, hoAvever, in McMurchy’s testimony, that MayheAV continued to try to interest his friends in the matter, and a proposition Avas made to Mr. De Bord and himself, in Mr. De Bord’s office in the New York Life Building, that certain of' Mr. MayheAv’s friends would sign a note Avith him for $1,000, McMurchy said:
I stated at that time that we Avere acting not. in accordance Avith the plans set forth by the president of the company in cases of embezzlement, and that I Avould be compelled to communicate Avith Mr. Smith before I could accept anything of the sort.
Mr. McMurchy further testified in ansAver to this question :
Did you — -In this conversation with Mr. Boucher, Avas there mentioned betAveen you any reason why the proceedings in the case of shortage in accounts of embezzlement in the MayheAV case should be some different from others?
A. Yes, sir. I think I stated Mr. Mayhew was an old employee of the company, a friend of the Smith boys; that
Mr. McMurchy, on being asked a question by Mr. De Bord, stated:
You advised me that it would be best not to prosecute, and that the settlement as made wrnuld be the- best thing; that Mayhew7 Ayas a young man, quite prominent; that he had committed no crime previous to that time, and that circumstances connected with the case w7ere an excuse for his embezzlement.
He further testified, in speaking of Mr. Mayhew7, as follows:
At the time he Avas presented with the accusation that he had embezzled these amounts he stated that he w7as preparing to pay them, and at all times and all through his conferences AAith me it w7as towards his paying up the amount that he-had appropriated.
Q. State whether you ever remember of Mr. Mayhew’s breaking dow7n, and crying, and begging for leniency?
-A. Yes.
Q. He did that several times?
A. Yes, he did that in your presence and in mine.
The court asked McMurchy the following question:
Q. What wras the object, — what did you understand at the time, if the note had not been given or security had not been given, — Avhat did you understand wrould occur?
A. I did not understand anything, for the reason that I would be compelled to follow instructions from Syracuse, front Mr. Smith, in that respect.
It had been previously shown that Mr. McMurchy’s instructions from Syracuse or from Mr. Smith wrere in all cases w7here there was a shortage to immediately prosecute for embezzlement, and take no chances.
The circumstances in this case are such as to corroborate the testimony of Mr. Boucher. It is proper to observe that Mr. Mayhew7 had assigned the note and mortgage for $1,000 to plaintiff to pay his shortage, which was then
The court having found that the plaintiff had threatened to prosecute Mayhew for his shortage and send him to the penitentiary, and agreed that if the shortage was paid or
For the foregoing reasons we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.