Commonwealth ex rel. Farmers' Bank v. Strickler

Opinion by Mr. Justice McCollum, ■ It is not denied that this case was tried in the court below on the theory that the defendant on the 1st of April, 1887, converted to his own use $1,000 of the bank’s money. The statement of claim was prepared in accordance with this theory, and the declaration of the plaintiff’s counsel when interrogated by the court in regard to the nature of their client’s contention harmonized with it. A claim of this nature, although made in á civil suit, necessarily involved a reflection upon the defendant’s character. It was tantamount to, if not in plain terms, a charge of embezzlement. That both parties to the suit so regarded it is further shown by the fact that the defendant was allowed without objection to introduce evidence of Ms character for honesty. If the issue had related to an alleged loss caused by an error of the defendant in adding the items in the depositors’ columns there would have been no occasion or room for evidence of this nature. [153] We have specifically ref erred to the matters above mentioned because they are proper for consideration in determining whether there is substantial cause for the complaint made by the plaintiff in respect to the charge. In view of the issue presented by them we cannot regard the instruction concerning the burden of proof as prejudicial to the interests of the bank, or in any sense misleading. There was no warrant in the evidence for a conclusion that the bank sustained a loss by reason of an error in adding the items in the depositors’ column. It was not claimed that there was any error in any item of the column, or that the bank in consequence of the error in adding the items paid to any depositor more than he was entitled to receive. It required something more than the error complained of to sustain the claim that the defendant had appropriated the bank’s money. The learned judge therefore made no mistake in sayring “ a mere incorrect entry would not of itself impose an obligation on the defendant; it would be necessary to show that a money loss accrued to the bank.” If the bank received and had the benefit of all the deposits made on the 1st of April, 1887, it was not injured by the error in footing them. The only ground on which a recovery was possible with due regard to the claim of the plaintiff and the evidence in the case, was that the defendant withheld or abstracted from the bank for his own purposes $1,000 belonging to it. Whether he did so was a question for the jury upon all the evidence in the case. It was submitted to them in an adequate and impartial charge, and their decision of it was in accord with a fair preponderance of the testimony. Judgment affirmed.