DocketNumber: No. 20,407
Citation Numbers: 101 Kan. 242
Judges: Marshall, Porter, That
Filed Date: 7/7/1917
Status: Precedential
Modified Date: 9/8/2022
The opinion of the court was delivered by
The plaintiff brought this action to recover upon a surety bond signed by defendant. The jury returned a verdict for defendant. A motion for a new trial was overruled and judgment entered on,the verdict, from which plaintiff appeals.
The evidence at the trial was not preserved and is not before us. The appellant’s contention is that upon the allegations of the petition and an admission contained in defendant’s answer it is entitled to a judgment for $128.25, and that it was error not to grant a new trial.
The answer contains a general denial and a special defense stated in the following language:
“That on or about March 24, 1910, the plaintiff knew and was fully aware of the fact that one W. J. Mercer, the person named and mentioned in the bond sued upon in this action, was a defaulter and had misappropriated its money in the sum of $128.25, but that said plaintiff fraudulently failed to notify this defendant, or any of the other sureties upon said bond of such fact, but that said plaintiff with full knowledge of the said action on the part of said W. J. Mercer continued said W. J. Mercer in its employment whereby he received and collected money for the said plaintiff. Said defendant further alleges that if said W. J. Mercer misappropriated any money or property of the said plaintiff as alleged in its petition, it was so misappropriated after said plaintiff was aware and had knowledge of his said misappropriation of the said sum of $128.25 on March 24, 1910.”
The defendant directs attention to the contract of employment by the terms of which W. J. Mercer was appointed a' salesman for plaintiff in certain prescribed territory, outside
In the opinion of the majority the contention of defendant is well founded, and it is held that the admission in the answer to the effect that on the date alleged in the petition W. J. Mercer misappropriated $128.25 cash belonging to plaintiff is not an admission that the misappropriation occurred within the territory where he was authorized to'act as agent for plaintiff, or under the terms of his contract of employment, and that, in the absence of any showing as to what the evidence disclosed in respect to those essential matters, it can not be said there was error in refusing to grant a new trial.
The judgment is affirmed.