Jaeger Mfg. Co. v. Md. Cas. Co., 45080.

• Decision Date: 18 November 1941
• Docket Number: No. 45080.,45080.
• Parties: JAEGER MFG. CO. v. MARYLAND CASUALTY CO.
• Court: Iowa Supreme Court

231 Iowa 151
300 N.W. 680

JAEGER MFG. CO.
v.
MARYLAND CASUALTY CO.

No. 45080.

Supreme Court of Iowa.

Nov. 18, 1941.

Appeal from District Court, Polk County; Russell Jordan, Judge.

Action at law to recover on surety bond. Judgment for plaintiff, and defendant appeals.

Affirmed.

WENNERSTRUM and SAGER, JJ., dissenting.

Miller, Huebner & Miller, of Des Moines, for appellant.

Carl A. Burkman, Stipp, Perry, Bannister & Starzinger, and Donald D. Holdoegel, all of Des Moines, for appellee.

HALE, Justice.

Irving A. Potwin was a certified public accountant, licensed and authorized to engage in the public practice, and did so engage in that practice from the time of the passage of the law relating to public accountants up to the time of his death on August 16, 1938.

The plaintiff is a corporation, all the stock of which is held by members of the same family except as to one stockholder. W. C. Jaeger and his three sons, C. S. Jaeger, A. C. Jaeger, and W. J. Jaeger, are the members of the family holding the stock. W. J. Jaeger has been secretary of the corporation since 1913, and as such has at all times had charge of the books and

[300 N.W. 681]

records. In May 1917, Potwin was employed, the nature of his employment being one of the principal points in dispute, the defendant claiming that his duties were those of a bookkeeper, while the plaintiff insists that his employment was that of a certified public accountant. He received his first certificate as a certified public accountant on November 14, 1930, and continued to pay the annual fee in December of each year until and including the December prior to this death. His official bond was filed each year as required by law. The bond for the year 1932 was filed prior to December 9, 1931, with Potwin as principal and the Maryland Casualty Company, defendant herein, as surety. After Potwin's death, on August 23, 1938, Lloyd Fugill, a public accountant, was employed by the plaintiff to make an audit of the records of the company, and examined and used the payroll books, check registers, monthly bank statements, and cancelled checks. From this report and other evidence it was found that the plaintiff company had been systematically cheated, and that of their funds a large amount had been taken through the operations of Potwin.

It was conceded in argument and there is no dispute that during the years in question a large amount of plaintiff's money was taken by Potwin by means of padding the payroll register and the forgery of certain checks. The district court in its judgment found this amount to be the sum of $3,309, which, with interest from the various dates upon which the amounts were taken, aggregated the sum of $4,533.53, the amount of the judgment. There is no serious controversy as to the amount of money taken.

The bond, after the usual recitals, provides as conditions: “* * * that as Certified Public Accountant in State of Iowa, he will render a true account of his office and of his doings therein to the proper authority, when required thereby, or by law; that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; that he will promptly account for all balances of money remaining in his hands at the terminaton of his office; that he will exercise all reasonable diligence and care in the preservation and legal disposal of all money, books, papers, securities, or other property appertaining to said office, and deliver them to his successor or to any other person authorized to receive the same; and that he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all the duties now or hereafter required of his office by law, and the securities on such bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office, * * *.”

The trial was begun on the 6th day of April, 1939, before a jury, and proceeded until April 12, at which time, by stipulation of the parties, the jury was waived and it was agreed that all questions of fact as well as of law should be submitted to and determined by the court without a jury. The trial continued until April 24, when the cause was finally submitted. A great deal of the evidence submitted bore on the question of the peculation of Potwin and may be eliminated from the consideration of this case except as it may be necessary to refer to it in relation to the parties' differing theories as to the nature of the employment of Potwin.

The...