Salem Traction Co. v. Anson

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 2. It is first insisted that the court erred in referring the case to a referee. The statute provides that the court may, upon the application of either party, or upon its own motion, direct a reference “when the trial of an issue of fact shall require the examination of a long account on either side”: Hill’s Ann. Laws, § 222, subd. 1. This provision of the statute is not an infringement of the constitutional right to a trial by jury (Tribou v. Strowbridge, 7 Or. 156; Trummer v. Konrad, 32 Or. 54, 51 Pac. 447); nor is any distinction made between an action on [567] contract and one of tort, but either may be referred if it involves the examination of a long account. 3. As to what constitutes such an account, within the meaning of the statute, has not been, and, in the nature of things, cannot be, exactly determined. Each case must depend upon its own facts: Mitchell v. Oregon Flax Assoc., 38 Or. 503 (63 Pac. 881). Where, however, the conclusion can be fairly drawn from facts disclosed by affidavit, or upon the face of the pleadings, that so many separate and distinct items will be litigated or examined that a jury cannot keep the evidence in mind in regard to each item, the case may be referred; and where there is a conflict in the evidence, or there is reasonable ground for controversy, as to whether the issue involves the examination of such an account, and the court below has décided to refer the cause, its conclusion will not ordinarily be disturbed on appeal. It is only when it clearly appears that no such account can be invoved that an order of reference will”be reversed: Welsh v. Darragh, 52 N. Y. 590. This case comes within the principle stated. It not only appeared upon the face of the pleadings, but from the affidavit of the manager of the plaintiff company, that the trial would necessarily involve the examination of the accounts of plaintiff’s business from June 1, 1898, to October 20, 1899, and that it could not intelligently be done by a jury. There was no error, therefore, in the order of reference. 4. It is next contended that the plaintiff’s remedy was by an action on contract, and not in trover, and hence the complaint does not state facts sufficient to constitute a cause of action. As a general rule, the mere failure of an agent to pay over or account for money collected for his principal will not sustain an action of conversion, because the agent is not bound to pay over the identical money received, and the transactions create nothing more than the relation of debtor and creditor between him and his principal (Royce v. Oakes, 20 R. I. 418, 39 Atl. 758, 39 L. R. A. 845; Hartman v. Hicks [Sup.], 59 N. Y. Supp. 529; Vandelle v. Rohan [Sup.], 73 N. Y. Supp. 285; Walter v. Bennett, 16 N. Y. 250; Borland v. Stokes, 120 Pa. St. 278, 14 Atl. 61); but where the principal is entitled to receive, and the terms [568] of the employment of the agent require him to pay over, the identical money received, an action of trover will lie for its conversion: Jackson v. Anderson, 4 Taunt. 24; Petit v. Bouju, 1 Mo. 49; Bunger v. Roddy, 70 Ind. 26; Donohue v. Henry, 4 E. D. Smith, 162; Farrand v. Hurlbut, 7 Minn. 477 (Gil. 383); Cotton v. Sharpstein, 14 Wis. 226 (80 Am. Dec. 774); American Express Co. v. Piatt, 51 Minn. 568 (53 N. W. 877). And such was the ease here. The defendant was the agent and general manager of the plaintiff corporation, with power and authority to collect the moneys due it for services rendered. All the money so collected belonged to his principal. The title immediately vested in the plaintiff, and the defendant had no interest therein, and no authority to make any use thereof whatever. He was bound by the terms of his employment to pay the money over to the treasurer of the plaintiff corporation, and could not even use it for the payment of current expenses without the approval of his superior. The plaintiff, as a matter of right, therefore, was entitled to the identical money received by the defendant on its account, and any unlawful use or misapplication thereof constituted a conversion, for which an action of trover was an appropriate remedy: Mechem, Cas. Ag. § 476; Henry v. Sowles(C. C.) 28 Fed. 521; Cotton v. Sharpstein, 14 Wis. 226 (80 Am. Dec. 774). 5. But it is said the complaint is insufficient because it does not describe with reasonable certainty the identical money alleged to have been converted by the defendant. In the nature of things, however, that was an impossibility. The complaint shows that the defendant was the trusted agent and manager of the plaintiff, with power and authority to collect all moneys due it, and during his term of service received and collected large sums, a part of which he failed to account for, but converted to his own use. It is impossible for the plaintiff to specify or describe any particular money converted, nor was it necessary to do so. The conversion consisted of distinct acts done by virtue of the confidential relations existing between the plaintiff and defendant. These separate acts may not be capable of either allegation or proof, but the aggregate result is, and that constitutes the conversion. [569] No stricter rule, certainly, should be applied in an action by a principal against his agent for conversion of funds which came into his hands by virtue of his employment than would be required in a prosecution for the crime of embezzlement; and in the latter ease a charge of embezzlement of a certain amount on a certain day will cover and admit evidence of a series of connected transactions, showing a continuing offense: State v. Reinhart, 26 Or. 466 (38 Pac. 822). 6. It is next contended that there was no competent evidence tending to support the findings of the trial court. The principal testimony was that of A. A. Cunningham, an expert accountant, who was the bookkeeper of the plaintiff during the defendant’s service, and up to September 1, 1899, and who had made an examination of the books since that date. These books were kept under the supervision and direction of the defendant, and entries were made therein by his orders. Cunningham testified in detail as to the manner of keeping the books, their condition, the items of account contained and the entries made therein, and the result of his examination. His testimony was competent, under the familiar rule that where books, papers, and records are numerous, an expert may testify as to the result of his examination and investigation: Hill’s Ann. Laws, §691, subd. 5; State v. Reinhart, 26 Or. 466 (38 Pac. 822); 1 Greenl. Ev. (15 ed.), § 93; 1 Jones, Ev. § 205; Boston & W. R. Corp. v. Dana, 1 Gray, 83; Hollingsworth v. State, 111 Ind. 289 (12 N. E. 490); State v. Findley, 101 Mo. 217 (14 S. W. 185). 7. And it is no ground of complaint on this appeal that the books themselves were not offered or admitted in evidence. The record indicates that they were in court, and no objection was made to Cunningham’s testimony because they were not offered in evidence, and therefore it cannot be urged here: Burton v. Driggs, 87 U. S. (20 Wall.) 125. 8. Finally it is said that, even if Cunningham’s testimony is competent, it does not show that the defendant converted or appropriated to his own use any money belonging to plaintiff. We do not purpose entering upon a discussion of that question, because the weight and value of the evidence were for the trial [570] court. We can only examine the testimony for the purpose of ascertaining whether there was any competent evidence tending to support the conclusions of the trial judge. 9. The evidence shows that the books of account were kept under the direction and supervision of the defendant; that they indicated that certain moneys due the plaintiff were collected from the state and from the county of Marion by the defendant, and not accounted for by him; and that two false entries had been made therein by the defendant’s direction, crediting one account with large sums, and charging the same to stores, when in fact no stores had been purchased. The defendant gave no evidence on the trial whatever, and did not undertake to explain any of these circumstances, or account for the false entries in the books. Their condition evidently required some explanation on his part, in the absence of which the court was fully justified in its findings. Nor was it necessary for the plaintiff to prove by evidence other than the books that money belonging to it had actually been appropriated by the defendant. The books were intended to contain a record of its business during the time the defendant was its manager, and should have accurately shown the amount of money received and accounted for by the defendant. The false entries were made therein for some purpose, and presumedly with the design of concealing from the plaintiff the truth, and covering up the wrongful acts of the defendant. The judgment is affirmed. Arrirmed.