Tobin Grocery Co. v. Spry

LANGDON, J.

This is an appeal by the defendant Frank Spry from a judgment against him for $571.50 in an action brought to recover money wrongfully converted to the use of defendants.

The plaintiff, a copartnership, employed the defendants as manager and clerk, respectively, in its Turlock branch. The complaint charged that the defendants, while so employed, “wrongfully and without the assent of said plaintiff, conspired together to apply some of the money or receipts and profits of said business ... to their own use. ...” It is alleged that said money, receipts, and profits were applied

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to the joint use and benefit of defendants, and by reason of this fact they became indebted to plaintiff; that plaintiff has repeatedly requested an accounting from defendants, which has been refused. It is prayed that the defendants and each of them be required to account for the profits and moneys belonging to said plaintiff which said defendants have misappropriated to their own use and benefit, and that judgment be given plaintiff for the amount found due and for general relief. The answer admitted that the defendant Emma Spry was indebted to the plaintiff in the sum of $12.50, being the amount of a profit made by her in the course of her employment, and alleged that defendant Frank Spry had mingled certain moneys of his own with money belonging to the plaintiff, and that he thereupon drew upon such commingled fund for use in a private enterprise not connected with his employment, and also alleged that said defendant had accounted for and paid to the plaintiff all money due to it by him and that said defendant was not indebted to said plaintiff.

The court found: “That said defendant Frank Spry, while in the employ of said plaintiff, did buy merchandise and resell it to plaintiff at a profit, said merchandise being the same kind of merchandise as said defendant was employed to buy and sell for the sole use and benefit of said plaintiff, and said Frank Spry also, while in the employ of said plaintiff as aforesaid mentioned, took money from, the business of said plaintiff, said money being at' the time the

money

of said plaintiff, and said Frank Spry used said money for his own use and benefit, and he has failed, refused and neglected to return said money or any part to said plaintiff; that the amount of profits made as aforesaid and moneys taken from said plaintiff by said defendant Frank Spry was and is the sum of $571.50.”