Brown v. First Nat. Bank of Columbus

• Decision Date: 19 April 1894
• Citation: 137 Ind. 655,37 N.E. 158
• Parties: BROWN v. FIRST NAT. BANK OF COLUMBUS.
• Court: Indiana Supreme Court

137 Ind. 655

37 N.E. 158

BROWN

v.FIRST NAT. BANK OF COLUMBUS.

Supreme Court of Indiana.

April 19, 1894.

Appeal from circuit court, Bartholomew county; N. R. Keyes, Judge.

Action by James S. Brown against the First National Bank of Columbus. From a judgment for defendant, plaintiff appeals. Affirmed.Hord & Emig, for appellant. Stansifer & Baker, for appellee.

DAILEY, J.

This was an action by the appellant against the appellee in the court below to recover a reward upon an alleged contract made and entered into by the parties, wherein the appellee agreed to pay the appellant a reward for the capture of one William H. Schreiber, who was the appellee's bookkeeper, and who had embezzled about $100,000 in money and bonds belonging to the appellee, and fled to Canada Schreiber was arrested by the appellant, and the money and bonds restored.

The complaint is as follows:

“(1) The plaintiff, James S. Brown, complains of the First National Bank of Columbus, Indiana, defendant, and says that the plaintiff was at the time of the facts hereinafter averred, and prior thereto, a citizen and resident of the city of Columbus, in the state of Indiana; that the defendant was then, and for a long time prior thereto, and is now, a corporation duly organized under the acts of congress in such cases made and provided for the purpose of carrying on a national bank at the city of Columbus, in Bartholomew county, state of Indiana. Plaintiff avers that the defendant, as such corporation, was carrying on and conducting a banking business in the said city, and had in its employ as bookkeeper one William H. Schreiber, and while acting as such employe of the defendant the said Schreiber, at the county of Bartholomew and state of Indiana, did steal, take, embezzle, and take away from the defendant money and property of the defendant, and appropriate the same to his own use, as follows, to wit, the sum of fifty thousand dollars ($50,000) in money, and bonds, promissory notes, and books of defendant of the value of one hundred thousand dollars ($100,000), and said Schreiber fled and escaped to Canada and beyond the limits of the United States. And, the defendant being desirous of capturing and arresting said Schreiber, the plaintiff and defendant made and entered into a contract in writing, duly signed by Francis T. Crump, vice president, L. K. Ong, cashier, and W. O. Hogue, director, of said defendant, for the defendant, which is now in the possession of defendant, and plaintiff files a copy thereof with this complaint, who were duly authorized thereto by said defendant, wherein and whereby the plaintiff agreed to engage actively in the capture of said William H. Schreiber, and arrest or cause to be arrested the said Schreiber. The defendant agreed to pay to plaintiff the sum of forty dollars ($40) per month, and his fare to and from the city of Detroit, in the state of Michigan, and his board while there, and, if the plaintiff secured said Schreiber's arrest, the defendant agreed to and with the plaintiff to pay him one-fourth or twenty-five (25) per cent. of all the money or property restored to defendant by said Schreiber. If plaintiff was unsuccessful in such arrest, the defendant agreed to pay to plaintiff forty dollars ($40) per month and his board and fare while engaged in an effort for his capture. The plaintiff avers that he immediately entered upon the performance of said contract, and was actively engaged in the attempt to capture and arrest said Schreiber from the 15th day of April, 1890, until the 28th day of September, 1890, when said Schreiber was arrested, and returned to the city of Columbus, in the state of Indiana. The plaintiff, on the ---- day of September, 1890, arrested and caused to be arrested the said Schreiber at the said city of Detroit, in the state of Michigan, and thereafter, at defendant's request, he was immediately transferred to the county of Bartholomew, in the state of Indiana, where said crime was committed, and delivered to the sheriff of said Bartholomew county; and thereafter said Schreiber was duly indicted by the grand jury in the Bartholomew circuit court for his said crime, and thereafter, on the 10th day of October, 1890, he was tried and convicted in said court, and sentenced to imprisonment in the penitentiary for the term of twelve (12) years, and he is now in the penitentiary serving out his term under such conviction. The plaintiff avers that the said defendant received and recovered of said money and property stolen and embezzled as aforesaid, from said Schreiber, the sum of fifty thousand dollars in money, and notes, stocks, bonds, books, and other personal property of the value of one hundred thousand dollars, all of which was restored to defendant and is in its possession. The plaintiff avers that he has fully performed said contract on his part, and the defendant has failed and refused to pay to plaintiff for the time expended by him in his said effort to arrest said Schreiber, and has failed and refused to pay him the said sum of twenty-five per cent. of the value of said money and property restored to defendant, although requested to do so, and the defendantis indebted to plaintiff under said contract in the sum of thirty-seven thousand and five hundred dollars ($37,500), which is due plaintiff from defendant, and remains wholly unpaid; and the plaintiff has no knowledge of any legitimate expense for which defendant is entitled to a reduction, and plaintiff denies that there are any other expenses to be deducted. Wherefore plaintiff demands judgment for thirty-seven thousand and five hundred dollars, and for all other proper relief. Hord & Emig, Attorneys for Plaintiff.

(2) The plaintiff, for second and further paragraph of complaint herein, says that the plaintiff was at the time of the facts hereinafter averred, and prior thereto, a citizen and resident of the city of Columbus, in the state of Indiana; that the defendant was then, and for a long time prior thereto, and is now, a corporation duly organized under the acts of congress in such cases made and provided, for the purpose of carrying on a national bank at the city of Columbus, in Bartholomew county, state of Indiana. Plaintiff avers that during all of said time the defendant, as such corporation, was carrying on and conducting a banking business in said city of Columbus, and had in its employ as bookkeeper one William H. Schreiber, and while acting as such employe of the defendant the said Schreiber, at the county of Bartholomew, and state of Indiana, did steal, take, embezzle, and carry away from the defendant money and property of the defendant, and appropriated the same to his own use, as follows, to wit, the sum of fifty thousand dollars in money; also bonds, promissory notes, stocks, and books of the defendant to the value of one hundred thousand dollars; and the said Schreiber fled and escaped beyond the limits of the state of Indiana and the United States into the dominion of Canada. And, the defendant being desirous of capturing and arresting said Schreiber and recovering said money and property so stolen and embezzled, the plaintiff proposed in writing, duly signed by him, to engage actively in the capture of said William H. Schreiber, and arrest, or cause to be arrested, the said Schreiber, and cause him to be delivered to the Detroit police, or any person or place the defendant might select; and said defendant was to pay to the plaintiff forty dollars per month and his fare to and from Detroit, in the state of Michigan, and his board while there, and, if plaintiff should secure the arrest and delivery as aforesaid, defendant was to pay to plaintiff one-fourth, or 25 per cent., of all the money or property restored to defendant by said Schreiber, after deducting all expenses that defendant may have incurred; the said per cent. to be paid only out of such restored funds, and after it was clearly and fully in defendant's possession. If plaintiff was unsuccessful, the board and fare of plaintiff and forty dollars per month was to be plaintiff's only charge, and the plaintiff's work was to cease at defendant's command; and said defendant accepted said proposition, and caused said acceptance by the defendant to be written on said offer and proposition of plaintiff for and on behalf of the defendant, and to be signed by L. K. Ong, cashier of defendant, Francis T. Crump, vice president, and W. O. Hogue, director of defendant, for and on behalf of the defendant. A copy of said contract is filed herewith, and made a part hereof, the original of which is in defendant's possession. Plaintiff avers that he immediately entered upon the performance of said contract, and was actively engaged in an effort to capture and arrest Schreiber from the 15th day of April, 1890, until the 28th day of September, 1890, when said Schreiber was arrested, and, at the request of defendant, returned to the city of Columbus, in the state of Indiana. The plaintiff, on the ---- day of September, 1890, arrested and caused to be arrested the said Schreiber, at the city of Detroit, in the state of Michigan; and thereafter, at the request of defendant, he was immediately transferred to the county of Bartholomew, in the state of Indiana, upon a warrant duly issued by the governor of the state of Michigan, upon requisition made by the governor of the state of Indiana upon him for the arrest and apprehension of said Schreiber, and said Schreiber was duly delivered to the custody of the sheriff of said Bartholomew county, in said state of Indiana; and thereafter said Schreiber was duly indicted by the grand jury in the Bartholomew circuit court for his crime; and thereafter, on the 10th day of October, 1890, said Schreiber was tried and sentenced by said court to imprisonment in the penitentiary for the term of twelve years, and he is now in the penitentiary at the city of Jeffersonville, in said state, serving out his time under...