Cheshire v. . Parker

CoNNOR, J.

The contentions of the plaintiffs that there was error in the refusal of the court to sustain their objections to questions addressed to the defendant Y. O. Parker while testifying as a witness for the defendants, as to whether or not he had a “feeling” that the Parker-Hunter Realty Company was solvent at the times he withdrew sums of money from its treasury and applied the same as payments on Mrs. Parker’s note, and as to his present financial condition, cannot be sustained. The answer of the witness to the first question showed that he understood that he was asked his opinion as to the solvency of the company at the times he caused the checks to be issued to him by the secretary of the company. The jurors, as intelligent men, could not bare been improperly influenced by tbe question to or by tbe answer of tbe witness witb respect to bis present financial condition.

Tbe plaintiffs did not object to tbe issues submitted by tbe court to tbe jury, but tried tbeir case on tbe theory on which the issues were drawn. There was evidence tending to show the solvency of the company at the times of the withdrawal and application of the money. This evidence was submitted to the jury under instructions which are free from error. Assignments of error based on exceptions to these instructions are not sustained.

If the Parker-Hunter Eealty Company was solvent at the time tbe money was withdrawn by the defendant Y. 0. Parker and applied by him as payments on Mrs. Parker’s note, as the jury found, then such withdrawal was not wrongful, and such application was not a wilful misapplication. There was evidence tending to show that the directors of the company knew and approved of the action of the defendant Y. 0. Parker. There was no evidence tending to show that such action was fraudulent.

The judgment is affirmed.

No error.