American Express Co. v. Piatt

Gilfillan, C. J. The appellant’s assignments of error present no question of law for us to consider. The first assignment, that the court erred in overruling defendant’s objections to the introduction of evidence, without specifying which of a large number of such rulings is referred to, is of course insufficient. The assignment that the court erred in admitting Exhibits 63, 64, and 65 is not well founded, because no exhibits so marked are in the return, and we cannot find from the return that any exhibits were so marked. This leaves nothing for us to consider but the sufficiency of the evidence to justify a direction to return a verdict.for plaintiff. How the amount directed was got at appears from the summaries of items charged against defendant on page 158 of the paper book, footing ■up $151,523.89, and summaries of items credited him on pages 159-161, footing up $146,339.56. The difference between the amount [570] of the verdict as directed and the excess of debits over credits would be more than made up by interest on such excess. We have had very little help from the briefs on either side in examining to ascertain if the items debited defendant are sufficiently established by the proofs. But, after a careful and somewhat laborious examination of the proofs, we are satisfied they are. It is not worth while to go over the evidence, and show how it sustains the various items. One of them, however, we will refer to. This is an item of $80,000 debited defendant, made up of moneys received on sixteen drafts of $5,000 each. This money was not traced into the hands of the defendant, but is shown to have been paid to a Mr: Remick, who was chief of what was called the “Money Order Department” of plaintiff, and it was disbursed in that department by him. That department appears to have been included in that of the cashier, the defendant, and to have'been under his general charge and control. We infer from the evidence that, as a matter of bookkeeping, plaintiff charged such money against the cashier, and credited him with it when disbursed. But as Remick, though subordinate to the defendant, was not his agent or servant, he was not in law chargeable with money coming into Remick’s hands and not into his own. However, though not properly charged against him, if credited back to him when disbursed, then the case stands as though it had not appeared in the account at all. Among the credits is one for $98,450.05, aggregated from forty-seven of what are termed “money abstracts,” introduced in evidence, and which, as the evidence indicates, related to transactions of the money-order department. These abstracts are not in the return, so that we cannot see, as the court below, having them before it, could, whether they accounted for and credited defendant with the $80,000. We cannot say whether, in the final footing up in the court below, any part of the $80,000 stands as a charge against defendant, and for that reason cannot say that the court erred in respect of that item. Judgment affirmed. (Opinion published 53 N. W. Rep. 877.) Application for reargument denied January 4, 1898.