Mechanics' Institute v. Firth

HENSHAW, J. These appeals are from the judgment, and from the order denying plaintiff a new trial. Defendant Firth was the treasurer of the corporation plaintiff. The defendants Fretwell and Kerr are his bondsmen. Plaintiff sued to recover the sum of $600, alleged to have been misappropriated. The facts disclosed upon the trial were as follows: The moneys of the plaintiff corporation were deposited in a bank, and were paid out by treasurer’s checks upon presentation to him by the secretary of warrants ordered drawn by the board of directors." J. H. Culver was the secretary of the plaintiff, and its business or executive manager. In January, 1893, the plaintiff corporation was engaged in preparing for the twenty-seventh industrial exposition of the institute. Repairs were in progress at the Mechanics ’ Pavilion. Upon Saturday, January 7, 1893, it became necessary to pay the workmen. The pay-roll amounted to $1,878.20, the payment of about $1,200 of which was urgent. No warrants had been ordered drawn by the directors to meet this payment, and it was after banking hours when the secretary, Culver, communicated with the treasurer, asking him to procure what money he could, and bring it to the pavilion. The Mechanics’ Institute Library was owned and conducted by plaintiff corporation, and its moneys were a part of plaintiff’s funds. The treasurer went to the librarian, and obtained from him the sum of $600, giving him his receipt therefor. This money he carried to the Mechanics’ Pavilion, delivered it to the proper agent of the corporation, and took Culver’s receipt therefor. There is no question but that this sum was properly disbursed upon account of the pay-roll. The president of the institute was Irwin C. Stump. In the emergency he also had been called upon to furnish money, and he, too, delivered to the agent of the corporation a like sum of $600, which was properly disbursed. This money, however, did not pass into nor through the hands of the treasurer. When the board of directors subsequently met, they ordered two warrants drawn upon their treasurer upon account of the pay-roll—the one for $600, to repay Stump, the other for $1,278.20. These demands were presented by Culver to the treasurer, and he, in obedience to them, as was his duty, drew his treasurer's check for $600 for Stump, and a check for $1,278.20 payable to cash. These two checks he delivered to Culver, taking his receipts therefor. Stump in due time re[723]ceived Ms money, and no question arises upon tMs point. The treasurer charged himself upon his books with the $600 obtained by him from the librarian, by crediting it as a cash payment into the library fund, and credited himself with its disbursement upon account of the pay-roll, for which disbursement he held as a voucher the receipt of the secretary, Culver. He also charged the institute with the disbursement of the $600 evidenced by the Stump check, and of the $1,278.20 evidenced by his check, payable to cash, and taken by Culver, whose receipts for both of these amounts, as well as the warrants ordering him to pay them, form his vouchers therefor. He did not, however, charge himself with the receipt of the Stump $600.