Humboldt Savings & Loan Society v. Wennerhold

FOOTE, C. Plaintiff brought this action against Wennerhold, Joseph Frank and John Wieland. During its pendency two of the defendants, Joseph Frank and John Wieland, died, and the executors of Frank and the administratrix of Wieland were substituted as defendants. Judgment passed for the plaintiff, from which, and an order denying a new trial, defendants appealed.

[53]The cause of action set out in the complaint was the breach of the conditions of a bond given to the plaintiff by one Hartmann, its secretary, upon which Wennerhold, Frank and Wieland were the- sureties. The alleged breach consisted in the embezzlement by Hartmann, while acting in the capacity above mentioned, of large sums of money belonging to, or for which the plaintiff was responsible.

The facts attending the affair seem to be that Hartmann embezzled the money which he is charged to have taken, by receiving some of it “from depositors coming to deposit money in plaintiff’s bank, and entered such sums in the pass-books of said depositors, but neglected to cause such sums to be entered in the books of the bank. He converted the same to his own use.” “The following depositors deposited money, filling out deposit tags; and Hartmann, receiving said money, signed or indorsed said tags with his name as secretary, and returned them to said depositors as their vouchers, but failed to enter such amounts in the books of the bank, but converted the same to his own use.” “Said Hartmann took from bags deposited in the vault and safe of plaintiff’s bank money set apart for persons who had borrowed the same from the bank, and converted the same to his own use.” “And on the following date said Hartmann took from the money of the bank the following sums, filling a check or receipt, to which he forged the name of V. Chapman, so that it appeared that said sums had been paid by him to said Chapman, whereas he had paid her nothing, but appropriated the money to his own use.” “All of which was done by Hartmann while acting as hereinafter testified to in the employ of the plaintiff.” “To the testimony adduced, and to each question asked in eliciting such testimony, the defendant objected on the grounds-—First, that the complaint did not state facts sufficient to constitute a cause of action; second, that it was incompetent, irrelevant, and immaterial.” The defendant further contends that the decision is contrary to the evidence, and that certain of the findings are not supported by the evidence.

The bond seems to have been given under the idea that Hartmann, as secretary of the plaintiff, might thereafter from time to time be re-elected, rechosen, and reappointed, or continued in office, or suffered to hold the same. And in point of fact he seems to have been continued in the office of secre