Marshall v. Mathews

Beck, P. J. (After stating the foregoing facts.) The evidence was conflicting upon the material issues in the case. The plaintiff’s right to a new trial depends upon whether or not there had been such a violation,of the contract by Mathews while he was superintendent, and such a violation of his duties to the owner arising from the contract and the mutual relations of one to the other, as justified the discharge of the superintendent. The evidence relating to this question being conflicting, the court submitted it to the jury; and as a part of the court’s .instructions [398] upon this subject he was requested in writing by the plaintiff, Marshall, to give the following charge to the jury: “ I charge you, -gentlemen of the jury, that if you believe under this evidence that W. F. Mathews collected moneys which belonged to the plaintiff, W. J. Marshall, either from the sale of hogs or otherwise, and if you further believe that W. Frank Mathews appropriated said moneys to his own use and retained the same, then I charge you that it would be your duty to find for the plaintiff and against the defendant.” The court gave this charge in substance, but added thereto, after the words “ and retained the same,” the following: “wilfully intending to deprive W. J. Marshall of same.” Plaintiff in error insists that the charge should have been given as requested, and that the addition made thereto by the court was error. This exception.to the charge is well taken. From the evidence in the case and from the pleadings it appears that the superintendent, in addition to having charge of the farm, was also entrusted with the disposition of many farm products, including chickens, butter, eggs, hogs, etc. One of his duties to the owner of these products was to account for the proceeds of the sale of any of them. If he sold them and converted the proceeds to his own use, it was a violation of the duties he owed to the owner. He was receiving a salary for his services, and was given under the contract the right to use any of the farm products for himself and his family as provisions; but when he sold any of the products it was his duty to account to the owner for the proceeds. If instead of doing this he appropriated such money to his own use and retained it, then he was guilty of a breach of the contract and of the duties imposed thereunder; and the plaintiff was entitled to a charge directly to that effect. This the court did charge; but he added the words, as we have seen above, “ wilfully intending to deprive W, J. Marshall of same.” The error of the addition which the court made was that it probably misled the jury, because they may have believed the testimony of the defendant that he had entered the proceeds of the sale of the hogs — had credited the same on his salary; and they may have believed that in this way he was not “wilfully depriving” the owner of the property of his mone3. But the owner of the property sold, the proceeds of which were in the hands of the superintendent, [399] had the right to have that paid over to him in cash, and the superintendent did not have the right even to appropriate it to the payment of his salary; certainly not, unless the petitioner was defaulting in the payment of the salary. Of course nothing here said is to be taken as an intimation that the superintendent would not have had a reasonable time in which to hand over or remit the proceeds of the funds. The particular item of the proceeds from the sale of the hogs may have been a comparatively small amount; but where an agent receives proceeds from goods belonging to his principal, he must promptly, at least within a 'reasonable time, remit or turn over'the proceeds to his principal, and an appropriation of the funds to himself is a violation of his duty. The erroneous charge was upon a material issue, and requires the grant of a new trial. Judgment reversed. All the Justices concur.