43 Misc. 50 | N.Y. App. Term. | 1904
This action was brought upon a general guarantee bond given by the defendant to the plaintiff, guaranteeing plaintiff against loss sustained by reason of the ■fraud or dishonesty of any of its employees.
The plaintiff claimed for the alleged defalcation of four of its employees, but upon the trial reduced its claim to the alleged defalcation of but two, viz.: W. T. French, amounting to the sum of $322.19, and F. M. Taylor, amounting to $39.99, and there is also a claim made by the plaintiff for the sum of $17.86 for expenses in a criminal proceeding against French. The jury found for the plaintiff, and judgment was entered for $380.03 damages, and $35.38 costs.
Four points are urged by the appellant as grounds for reversal. First. That plaintiff failed to use due diligence in prosecuting Taylor “ to conviction.” Second. There is no proof of delivery of goods to_ Taylor, or their value. Third. There is no proof of delivery of goods to French, or their value. Fourth. Plaintiff failed to use due diligence in prosecuting French “ to conviction.”
The bond sued on contained the provision that “ The employer shall if, and when, requested by the company, at the expense of the company, use all diligence in prosecuting any employee to conviction for any fraud or dishonesty, as aforesaid, which he shall have committed, and in consequence of which a claim shall have been made under the bond, and such action, when requested, by the employer shall be a condition precedent to recovery under this bond.”
The defendant claims that the foregoing provision requires the plaintiff to show that both its employees were prosecuted to conviction. As to the employee Taylor, it was sufficiently made to appear that the defendant made no request for his prosecution by the plaintiff. As to the employee French, it appears that upon the request of the defendant the plaintiff made a complaint against French. He was arrested and held for appearance before the grand jury. Plaintiff’s agent thereafter went before the grand jury and presented proof of the fraud, and the grand jury, for some unknown reason, failed to find an indictment against French, and he was discharged.
The bond provides for reimbursement to the plaintiff for such pecuniary loss as it may sustain by reason of “ fraud or dishonesty” on the part of an employee. An employee might be guilty of a fraud in connection with his employment resulting in loss to his employer, but which would not constitute a crime for which he could be indicted or convicted; and it cannot be said that, before the defendant is liable, there must be a conviction.
There was sufficient testimony from which the jury were justified in finding that French had defaulted in the sum of $322.18. It was shown by the manager of plaintiff’s store at Hornersville, Penn., that between January 11 and May 9, 1902, a period covered by defendant’s bond, goods had been delivered to French under a written contract .(in evidence) by the terms of which French was to return the goods or the money for them within a certain time named therein, and that he failed to account for such goods to the amount and value of $322.18. When plaintiff notified the defendant of
As to the shortage of the employee Taylor, no competent evidence was given, except his admission contained in a letter from him to plaintiff, admitted in evidence, in which he acknowledged an indebtedness of thirteen dollars and fifty-one cents, and which sum defendant admits Taylor converted. As the jury allowed the full amount of thirty-nine- dollars and ninety-nine cents claimed by plaintiff, the judgment should be reduced by the sum of twenty-six dollars and forty-eight cents.
Judgment is reversed and a new trial granted, with costs to appellant to abide the event, unless respondent consents to deduct the sum of twenty-six dollars and forty-eight cents from the amount of the judgment, in which ease the judgment. is modified by reducing the amount thereof to three hundred and eighty-eight dollars and ninety-three cents, and, as so modified, is affirmed, without costs of appeal to either party.
Fbeedmah", P. J., and Gbeeebaum, J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event, unless respondent consents to deduct twenty-six dollars and forty-eight cents from judgment, in which case judgment is modified by reducing amount thereof to three hundred and eighty-eight dollars and ninety-three cents, and as so modified, affirmed, without costs of appeal to either party.