Chicago, Burlington & Quincy R. R. v. Bartlett

Moran, J. It is contended by appellants that the conditions ' of the bond sued on are such as not only to secure the faithful and careful discharge of the duties of paymaster by Bartlett. but to constitute him an insurer of the company’s funds that came to his hands and to oblige him to pay over or account to the company in the sense of paying over, in all events, all such funds; that loss of money by inevitable accident, or by theft without any negligence on his part is no excuse. In our opinion the construction contended for is not the true construction to be placed upon the bond. The entire obligation is comprehended in the words of the general condition of the bond, i. e., “ that Bartlett shall well, truly and faithfully perform the duties required of him by said company as paymaster;” and what follows, to wit, “ and promptly pay over and promptly account for all moneys belonging to said company, that shall be received by him as such agent, and shall deliver over to said company all property of said company when required ” are but distinct specifications of some chief duties of the paymaster, which serve to enumerate and particularize those duties, but add nothing to the scope of the general condition which covers and comprises those and all other duties which may be required of him as paymaster. He is no more absolutely bound by the terms of the bond to discharge the enumerated or specified duties, than he is duties not specially mentioned, yet covered by the general condition, and that which in its nature would excuse him in the absolute performance of any of the duties covered by the undertaking, will excuse the absolute performance of duties specially mentioned. It appears to be the result of the decided cases, that bonds with conditions similar to the one in question, when given by employe to employer, will not be construed in such a manner as to enlarge by the bond the obligations of the employe beyond the undertakings of the contract of employment. Such bonds are construed as securing the fidelity, honesty, care and diligence of the employe, but not as insuring the employer against destruction of his goods or money while in the employe’s control, by inevitable accident, or against spoliation by thieves or robbers, when the employe has been guilty of no negligence. Walker v. British Guarantee Ass’n, 83 Eng. Com. Law, 276; Planters’ and Merchants’ Bank of Huntsville v. Hill, 1 Stew. (Ala.) 201; Hnion Bank v. Classey, 10 Johns. 271; B. & O. R. R. Co. v. Jackson, 3 Atlantic Rep. 100. The ease last cited was recently decided by the Supreme Court of Pennsylvania, and is directly in point, the condition of the bond being almost identical in the wording with the condition of the bond in this case, and the money of the company having been stolen while in the hands of the agent. That case serves also to sharply mark the distinction between the construction applied to bonds between private persons and those given by public officers and receivers of public money. In Commonwealth v. Comley, 3 Pa. St. 372, the Supreme Court of Pennsylvania considered the rule as applying to the bond of a public officer, and even though it was offered to be shown that the money was stolen in the night time, without the fault of the collector, the court held that he was bound to pay over the money. The court construes the condition of the bond to be an absolute undertaking to pay over the money collected at all events, saying: “ The keepers of the public moneys or their sponsors, are to be held strictly to the contract, for if they were to be let off on shallow 2Dretenses, delinquencies, which are fearfully frequent already, would be incessant.” The condition of the bond in Commonwealth v. Comley, was to “ account for and pay over” the moneys to be received, and in the B. & O. Co. v. Jackson, supra, the condition was, among other things, that the agent should “ account for and 2eay over the whole ” of the moneys received, and the counsel for the com] any, as appears from the extracts from his argument furnished us in the brief of counsel for appellees, ])ressed ujeon the attention of the court the ease of Commonwealth v. Comley, and the construction of the condition of the bond in that case, as being decisive of the case against the agent, Jackson but the court said: “ The only ground on which these defendants could be held liable, was the alleged negligence of Jackson.’’ All the cases cited by coun-el for ap2>ellant are actions on the bonds of public officers or receivers of public money, and while it is true, as counsel says, that many of those cases j>roceed upon the construction given to the condition of the bond-, and do not mention the ground of public policy as a reason for construction, yet there can be but little doubt that the following language of the Supreme Court of the United States, U. S. v. Prescott, 3 Howard, 578, supplies the true ground for the strict rule applied: “Public policy requires that every depositary of the public money should be held to a strict accountability. Hot only that heshould exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condition would open a door to fraud, which might be practiced with impunity.” In our view the only ground of recovery here, is the alleged negligence of Bartlett; and whether Bartlett was guilty of negligence, such as to render him liable, and whether the company or those officers of the company who held the relation of vice principal as to Bartlett, were guilty of such contributory negligence as would bar a recovery by the company for the money lost, were questions for the jury to determine under proper instructions. We have carefully examined the instructions given and refused, and have considered the criticisms of counsel thereon, and are of opinion that the court below correctly stated the law in the instructions given, and committed no error in refusing those asked by appellant and which the court refused to give. It is urged by appellant that the court erred in permitting Bartlett to answer a question relating to a certain letter written by him to the company. Bartlett testified upon the trial that, to the best of his knowledge, he locked the safe and threw the combination before he left the treasurer’s office on the day of the larceny. Appellants introduced in evidence the following letter, as an admission by Bartlett that he left the safe set on the last number of the combination: “ 3161 Groveland Pakk Avenue, ) “ Chicago, April 14, 1884. j “Gentlemen : You have doubtless been made aware through proper channels of the robbery of my safe, and of my dismissal from the company’s service immediately thereafter, for carelessness (so claimed) by Mr. Peasley, the treasurer of the company. After hearing the latter’s statement of the case, and on consultation with leading bankers here, my bondsmen think I used ordinary care and caution, by following the common practice of leaving my safe set on the last number of the combination, with the office in charge of two trusted employes of the company,and deem that my seventeen years of service, accounting for nearly one hundred million of dollars, charged to me during that period, is corroborative evidence of faithful care on my part of the funds intrusted to me, inasmuch as the treasurer does not claim that I was in any way implicated in the robbery, but, on the contrary, disavows it. I should be glad to have your board return me my bond, and order the amount stolen (now standing to my debt on the books of the company) credited to me and placed to the debit of such account as you deem proper. “ Most respectfully your servant, “ C. S. Bartlett. “ To the President and Board of Directors of the C., B. & Q. R. R. Co., Boston.” Thereupon Bartlett was recalled, and was, against the objection of plaintiff, allowed to be questioned, and to answer as follows : Q. “I will ask you to explain this sentence; that is to say, what explanation there is to it if there is any. ‘ After hearing the latter’s statement of the case (that is, Mr. Peasley’s) and on consultation with leading bankers here, my bondsmen think I used ordinary care and caution, by following the common practice of leaving my safe set on the last number of the combination, with the office in charge of two trusted employes of the company; and taken with my seventeen years of service, accounting for nearly one hundred million of dollars, charged to me during that period, is corroborative evidence of faithful care on my part of the funds intrusted to me.’ ” A. “ It was entirely on their theory. This was written in April. Their theory was that I loft the safe open—-unlocked, and on their theory and on their ground I wrote that letter, not on my theory at all; their theory was that the safe was left unlocked, and on that ground the officers, having been in the habit of leaving their safes that way for twenty years, Mr. Smith, with immense sums of money, and I also; and after talking with John DeKoven and other people in this city, Mr. Stubbs, the treasurer of the Union Rolling Mill, on that ground I wrote it.” “In general,” says Starkie, in his work on Evidence, 677, “ where a written document is given in evidence as containing an admission by the adversary, parol evidence is admissible to explain it or to show that it originated in mistake.” And the same author, on page 719, speaking of an inconclusive admission, says: “ And it seems in general when a document, such as a letter, not being matter of compact and agreement, is given in evidence as an admission by the adversary, the latter may adduce evidence to show that it originated in mistake or to explain it by circumstances.” The rule applicable to such evidence was stated as follows, by Gowen, J., in McRea v. Purmont, 16 Wend. 460 : “ Whenever a right is vested or created, or extinguished by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal arid common sense construction of the instrument; but any writing which neither by contract, the operation of law, nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. Thus, a will, a deed or a covenant in writing, so far as they transfer or are intended to be evidence of rights, can not be contradicted or opposed in their legal construction by facts aliunde. But receipts and other writings which only acknowledge the existence of a simple fact, such as the payment of money, for example, may be susceptible of explanation and liable to contradiction by witnesses.” Bartlett’s letter was not the basis of any right between the parties, but was competent evidence tending to prove a collateral fact, to wit: that he had left his safe set on the last number of the combination. The apparent admission contained in the letter did not constitute an estoppel, and though, being written and deliberate, it might be entitled to more weight than a verbal admission, yet, like a verbal admission, it was subject to have its importance as evidence affected, and either increased or diminished by consideration of all the facts and circumstances under which it was made. Suppose such an oral admission was proved, would it not be competent for the party against whom it was introduced to show that while he used the very words of the admission, yet he did so as an assumption, and for the sake of argument, or that he' did so deliberately and by the advice of counsel, or to- avoid the irritation which a contrary assertion would produce in the negotiation he was carrying on ? And if so, why is not the written admission subject to the same explanation % To hold otherwise would be to give to mere evidential statements, on the faith of which no act was done, no condition altered, the same conclusiveness as pertains to admissions that constitute estoppels as between the parties. In considering the weight and conclusiveness to be attached to admissions, Greenleaf, Vol. 1, Sec. 201, says it is “material to consider whether the admission is made independently, and because it is true, or is merely conventional, entered into between the parties from other causes than a consideration of its truth, and only as a convenient assumption for the particular purpose in hand.” The assumption or theory on which such written admission is made, must, then, be competent to be considered by the jury, as well as all other circumstances affecting its weight in determining what importance to attach to it as evidence tending to establish a collateral fact. The answer of Bartlett to the question does no violence to the language of the letter. He does not attempt to add words to or to take words from the writing, nor to distort them from their usual and ordinary sense. The words remain as written, to be weighed by the jury, together with the statement, that in writing that letter to the company asking that his bond be given up, he made his argument in support of his request, assuming tlie theory which he knew the company held, that he left the safe set on the last number of the combination. This was but the proof of a circumstance of a fact present to his mind when he wrote the words, and competent under the well-settled rule to be considered in connection with the letter. Starkie on Evidence, 719; 2 Wharton on Evidence, 1127; Holsten v. Jumpson, 4 Esp. 189; Reay v. Richardson, C. M. and R. 422; Noble v. Epperley, 6 Ind. 468; Roe v. Day, 7 C. and P. 705; Clifford v. Boezman, 41 Wis. 597; 55 N. Y. 222. The case of Brant v. Gallop et al., 111 Ill. 487, is relied on by counsel for apjiellant as showing that the court erred in allowing Bartlett to explain the letter. We do not understand the Supreme Court as establishing any new rule on this point, or as intending to modify the rule as stated by the authorities above cited. In that case, as appears from the opinion, the trial court offered to allow the writer of the letters to testify to all the circumstances under which they were written, but he sought to change the import of the language, by proving that which the court says would be the same as adding to the contents; that is, something more was sought to be done than proving all the circumstances attending the writing of the letters. ’ Tis true, the court arguendo use language which gives color of support to counsel’s contention, but the language of the opinion, in that as in all cases, must be understood with reference to the facts of the case before the court. Upon a review of the whole record, we are of opinion no substantial error appears, and the judgment of the superior court will therefore be affirmed. Affirmed.