50 Colo. 379 | Colo. | 1911
delivered the opinion of the court
The appellees, who were plaintiffs below, brought this suit to recover from Pearl Mae Hayes and appellant the penalty named in an indemnity bond, executed and delivered by the latter to, and guaranteeing plaintiffs against loss, occasioned through certain acts of Miss. Hayes, their cashier and clerk. The bond obligated appellant to reimburse plaintiffs for any pecuniary loss by them sustained of money, securities or other personal property in the possession of the employee, or for the possession of which she was responsible, by reason of any act of fraud or dishonesty upon her part, while in the discharge of the duties, of her position, amounting to larceny or embezzlement, “and which
The complaint alleged, inter alia, the employment and duties of Miss Hayes, the execution and delivery of the bond, which was set forth; the renewal of the bond February 1, 1904, for the year ending March 25, 1905; that Miss Hayes entered upon her duties under the employment, and after the execution of the bond, took charge of moneys, goods, securities, chattels, effects and property of the appellees, and continued in such employ until the 3rd day of September, 1904; that between the 1st day of September, 1903, and the 3rd day of September, 1904, while in the active'discharge of her duties as specified in the bond, and during the existence thereof, she “did embezzle, take, steal and carry away of the moneys, securities, goods, chattels, effects and property of these plaintiffs, and appropriate and convert the same to her own use, without the knowledge or consent of these plaintiffs, or either of them, moneys, securities, goods, chattels, effects and property” to the amount and value of $2,451.30; that plaintiffs, on or about the 13th day of January, 1905, and upon the discovery of the acts and conduct of Miss Hayes, notified defendant thereof in writing, and subsequently demanded of the latter payment of the loss sustained to the amount of the penalty named in the bond; that defendant refused payment thereof; that plaintiffs duly performed the conditions and requirements of them to be kept and performed by the terms of the bond. The prayer of the complaint is for judgment in the suin of $2;000.00, the penalty named in the bond.
Thereupon the matter was'referred to a referee to hear and determine all the issues, both of fact and of law, and'to report the same to'the .court. The -referee’s findings-.of fact supported the allegations Of the Complaint. The report further recited, substantially,' that before the execution and delivery of •the bond,, the defendant company required of the plaintiffs'a certain statement in writing, wherein the latter answered questions, propounded by the defendant company .concerning the nature and character of the position to U9 [[filled, and the duties to be performed by Miss.Hayes;.that among- other questions contained in said statement was No. 18, which read: “Have you. ever sustained loss through the dishonesty of. any one holding the position of the applicant?” That said question was answered “No,” and that said answer was false. The report continues'as follows: “The plaintiff, IT. A. Newton, who dictated-the answep to said question, testified ■that he told the defendant Hayes, (the defaulting employee), who wrote, the answer to this and all other
Exceptions to the referee’s report were filed by plaintiffs, and' likewise the defendant ■ here appealing. Thereafter, January 5, 1907, the court • overruled the exceptions of defendant, sustained those of plaintiffs, and further declared that the finding “No,” in answer to Question 18 in the written statement, was not sustained by the testimony, and that plaintiffs had proven by a preponderance of the evidence, that the question propounded was' not falsély answered; The court thereupon modified the referee’s report in that particular, approved.the' same as modified, and entered judgment in favor of ■ the plaintiffs for the penalty named in the bond, together with interest from the date of demand. The defendant prosecutes this appeal, ^ and" seeks to reverse the judgment, upon several grounds which we will consider in the order most suitable to us.
1. Defendant contends that the complaint does ' not state a cause of action in that it fails to allege that the property embezzled was, at the time it was so embezzled, in the possession of the employee, as such, or that she was responsible therefor.
A Defendant further contends that, to entitle plaintiffs to recover for a loss occurring within the period of the original bond, such loss' must have been discovered not later than September 25; 1904; that the renewal constituted a separate and distinct contract, and to recover for a loss occurring thereunder, the loss must have been discovered during such period, or within six months thereafter.
The view which we take of the matter relieves us of the necessity of determining the particular con
This is not a case where the complaint fails to state any cause of action whatever in. favor of'plaintiff against the defendant. It is a case where a cause of action in that respect can be clearly gathered from the averments- of the complaint. Upon the assumption of the correctness of the construction of the bond, as contended for. by the defendant, the defects, imperfections and omissions in the complaint would have been fatal upon proper demurrer or motion. Upon defendant’s theory, the issues joined were such as necessarily required, on the trial, proof of the facts showing the dates of the' embezzlement, and that such dates were within the renewal period of the bond. Upon that assumption of the law, and the state of the pleadings, it is not to be presumed that the evidence did not warrant the judgment. To presume that the evidence showed the acts of embezzlement within the renewal period is not inconsistent with the alleged defective pleading, but perfectly consistent therewith.
Moreover, the defendant at all times in the court below, treated the matter in litigation as though it were liable for any loss occasioned by the employee’s acts ■ of embezzlement .occurring between September 1, 1903, and September 3, 1904, which were discovered on or before January 1, 1905. If any of the acts of embezzlement occurred during the period of the original bond, the bill of particulars advised the defendant of that fact, and it could properly have protected itself by plea; if evidence offered showed that some of the matters- sued,for were barred, because not discovered in time, a proper objection or motion would, doubtless, have excluded it; if defendant had'considered itself prejudiced in
3. It is argued that, inasmuch as the complaint contains no allegation that three months had elapsed, after notice and proof of loss, before the commencement of suit, it fails to state a cause of action.
The contract required the plaintiffs to give notice to the defendant of the loss and accompany the same with satisfactory proof thereof. It then obligated defendant, within three months thereafter, to make payment to plaintiffs for such loss': It is argued that the doing of these things by the employers, and the lapse of three months thereafter, were conditions precedent to- the right on the part of plaintiffs to recover. The general allegation that plaintiffs had performed and complied with all the conditions of the bond, was sufficient, under the circumstances of this case. In pleading the performance
4. Defendant contends that the trial judge was without' authority to modify the referee’s finding that the answer to Question No. 18 in thé employer’s statement was false, and much of the argument of either party pertains, to this matter. As far as this case is concerned, the -acts of the court, in that respect, are wholly immaterial. A false statement, even if shown by the evidence, will not avail the defendant, unless it was pleaded as a defense. This was not done. If the court erred in the premises, it was error without prejudice. If the defendant wished to take advantage of any clause in the contract which voided it, it was essential that it plead facts presenting tlie precise question. — Loyal Mutual co. v. Brown Mercantile Co., 47 Colo. 467, 475.
Perceiving no prejudicial error in the record which appellant is in a position to urge on this review, the judgment is affirmed.
Affirmed.
Chiee Justice Campbell and Mr. Justice Musses concur.