Portland Cracker Co. v. Murphy

California Supreme Court Dec 14, 1900 No. S.F. No. 1637.Published

Before: Van Dyke

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Holding. A plaintiff may recover a simple money judgment for funds held by a defendant even if the jury finds against the plaintiff on allegations of embezzlement or fraudulent appropriation. The failure to prove fraud merely precludes the plaintiff from obtaining a judgment authorizing the defendant's imprisonment.

Issues

Whether a defendant is entitled to judgment when a jury finds against the plaintiff on allegations of fraud but in favor of the plaintiff on a general money demand.
Whether a general verdict for a money demand is inconsistent with a special finding that the defendant did not fraudulently appropriate the funds.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Clearly, when the defendant had money in his hands belonging to the plaintiff, the plaintiff was entitled to a money judgment, although the defendant may not have been guilty of embezzlement or fraudulent appropriation.”

Synopsis

Action for Money Fraudulently Appropriated—Prayer fob Imprisonment—General and Special Findings—Money Judgment.— Under a complaint alleging fraudulent appropriation of plaintiff’s money received by defendant as plaintiff’s agent and clerk, and praying judgment for defendant’s imprisonment until it is paid, a general finding in favor of the defendant for a less sum is not inconsistent with a special finding against the alleged fraud, and a money judgment may be entered upon such findings, without judgment for imprisonment.

Id.—Instructions Construed Together—Burden of Proof—Verdict not Against Law.—The instructions are to be construed together as a whole, and where, so construed, they import that plaintiff has the burden of proof upon the whole case, and must win or lose accordingly, but that the verdict may be against him upon the issue bf fraud, if he fails to prove it, and yet may be for him upon the money demand, if money had and received by defendant to plaintiff’s use is proved, a verdict against the fraud and for a money demand is not against law, though it may be seemingly inconsistent with part of the instructions taken separately.

VAN DYKE, J.

The complaint alleges that the defendant embezzled and fraudulently misapplied and converted to his own use the sum of twelve hundred and seventy-one dollars and ninety-four cents, which had come into his hands in the course of his employment as the agent and clerk of the plaintiff, and the complaint prays that judgment against the defendant may

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be had in. said sum and for costs of suit; and that the defendant be arrested and held to bail; that judgment may be entered against the person of said defendant; that he be imprisoned until the payment of said sum, and for further relief. Upon the issuance of the summons plaintiff applied for and obtained an order for the arrest of the defendant under section 479, subdivision 2, of the Code of Civil Procedure. The necessary affidavit and undertaking being furnished, the order for arrest was made, and the defendant was thereupon arrested, but was released on the same day upon giving an undertaking as required by section 487 of the Code of Civil Procedure. The answer denies that the defendant embezzled, fraudulently or otherwise misapplied or converted to his own use, the sum of twelve hundred and seventy-one dollars and ninety-four cents, or any other sum which had come into his hands in the course of his employment as the agent or clerk of the plaintiff, or at all. Upon the issues presented the case was tried by a jury, and a general verdict rendered in favor of the plaintiff for the sum of seven hundred and fifty dollars, and also found on the special issue submitted, to wit: “Did the defendant fraudulently appropriate the money of the plaintiff as alleged in the complaint? Answer. No.”

Upon the coming in of the verdict the defendant moved the court to enter judgment in his favor upon the ground that the special issue controlled, and that the defendant was -entitled to a judgment thereon. The court denied defendant’s motion and entered a money judgment in favor of the plaintiff upon the general verdict.

The defendant appeals from the judgment so entered upon a bill of exceptions, and relies for a reversal upon two alleged errors: 1. That upon the verdict the judgment should have been for the defendant; 2. That the verdict is contrary to law in this, that it is contrary to the instructions of the court. The theory of the defendant is that, inasmuch as the plaintiff alleged that the money had been embezzled and fraudulently appropriated, that he cannot recover at all, unless the issue upon such allegation is found in its favor. In this appellant is clearly mistaken. The action is for the recovery of money in the hands of the defendant belonging to the plaintiff, and

Portland Cracker Co. v. Murphy

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Synopsis

VAN DYKE, J.

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