German Publishing Co. v. Scheidt

LANGDON, P. J.

This appeal is by the defendant from a judgment against him in an action brought by plaintiff corporation to recover fifteen hundred dollars alleged to have been received by defendant as the president of said corporation for the use and benefit of the corporation and wrongfully appropriated to his own use.

The record contains a mass of conflicting testimony, rendered particularly unsatisfactory and confusing, in many instances, by the fact that many of the witnesses had a most imperfect and limited knowledge of the English lan

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guage. However, out of the conflict, the trial court has found: That on or about November 3, 1922, defendant, while acting as president and director of plaintiff, received for the use and benefit of plaintiff the sum of fifteen hundred dollars in cash; that plaintiff at said time was, and ever since has been, the lawful owner of and entitled to the immediate possession of the said fifteen hundred dollars; that defendant appropriated and used in his own private business the said fifteen hundred dollars in cash received by him for plaintiff’s use as aforesaid.

Our discussion will be confined merely to the evidence in the record which supports the findings. The transcript reveals that the plaintiff was the owner and publisher of a newspaper called the “California Post,” with offices at Fresno, California. Defendant, while acting as president and director of plaintiff, received on November 1, 1922, a certain check for fifteen hundred dollars belonging td plaintiff, drawn in favor of the “California Post Building Fund.” This check had been given to Mr. Mayer, secretary of the plaintiff company, for the company by F. K. Emich in payment of the purchase price of three hundred shares of the treasury stock of the company, which it was agreed should thereafter be issued, to Emich when a permit to issue additional stock could be obtained from the commissioner of corporations.

Before this payment by Emich the directors of the plaintiff company had passed a resolution and made plans for a new building for the conduct of its business, and to obtain the necessary funds for this purpose had agreed to levy an assessment upon the outstanding stock and to sell such additional stock as might be necessary to raise the amount required, and had also agreed that the money to be received from these sources should be deposited in the bank to the credit of the plaintiff, but in a special account to be designated “California Post Building Fund” account. As we have stated, the check in question was drawn in favor of this fund. When it was received by the secretary he took it to the president of the corporation, the defendant here, who accepted it, expressly promising to deposit it in the account of plaintiff. At this time defendant had full knowledge of the facts herein recited and promised to issue the treasury stock to Emich as soon as the permit should be