Posey v. Lambert-Grisham Hardware Co.

• Decision Date: 23 January 1923
• Citation: 247 S.W. 30,197 Ky. 373
• Parties: POSEY ET AL. v. LAMBERT-GRISHAM HARDWARE CO. ET AL.
• Court: Kentucky Court of Appeals

247 S.W. 30

197 Ky. 373

POSEY ET AL. v. LAMBERT-GRISHAM HARDWARE CO. ET AL.

Court of Appeals of Kentucky.

January 23, 1923

Appeal from Circuit Court, Henderson County.

Suit by Bernard Posey and another against the Lambert-Grisham Hardware Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Edw. J McDermott and Ernest Woodward, both of Louisville, and F. J Pentecost, of Henderson, for appellants.

Dorsey & Dorsey and John C. Worsham, all of Henderson, for appellees.

SAMPSON C.J.

This is an appeal from a judgment of the Henderson circuit court dismissing appellant Posey's petition praying the recovery of about $15,000 or $20,000 worth of real and personal property conveyed by him on February 16, 1915, to the appellee Lambert-Grisham Hardware Company. This is a very unusual case. Posey, when about 19 years of age, was engaged by the appellee company as bookkeeper in its hardware store in Henderson, Ky. at a salary of $40 per month. Posey was then just out of an Indiana business college, where he had been studying for some 15 or 18 months, according to his evidence.

He began work for the appellee company in 1907, and continued in its employ until the 16th of February, 1915, on which day he made the aforesaid deed. He had not been with the company long until he became a trusted employé. The store seems to have been a large one, with a number of clerks. In the store was a cash register having seven drawers. These drawers were used by the clerks for the deposit of the money and checks taken in on sales. At the close of the day's business it was the duty of appellant Posey to take these funds from the register and place them in the safe of the company, which was located in the office. He also made the company deposits in the bank and generally conducted its office and handled its money.

Although the company had a large business through the years while he worked there, it seemed not to have made a profit, and about the end of the year 1914, Lambert, who was manager of the store, and Grisham, who also worked in the store, conceiving that there was a leak somewhere in the business, set about to find it and to stop it. On the night of January 27, 1915, they went to the office of the store and began to make an examination of its books. Incidentally they looked into the private papers of appellant Posey, which were in the desk in the office, and found he had a large bank account and quite a lot of real and personal property. This aroused their suspicion against Posey. The cash register, when properly working, carried a slip on which were recorded all the transactions of the store during the day and totaled them at night, but this slip had not been placed on the machine for several months next before this time, although it was the duty of appellant Posey to keep such slip on the machine. Observing this, Lambert put the slip on the machine so that it began to operate on January 28th. This slip showed the amount of sales of each clerk and the total amount of business done through the day with many other bits of information. Without letting appellant Posey know it, Lambert and Grisham began to check up the register each night before the money was taken from it, and they discovered that a few dollars were being taken from each of the seven drawers almost daily. This went along for several days. They finally asked certain of their clerks to privately check their drawers and to make a record of the amount of their sales and the money placed in their drawers. This they did, and found that the cash reported by appellant Posey to have been taken from the drawers was less than the amount actually put in there by the salesmen.

After having obtained all this evidence and after having examined appellant's bank book and discovered he had been making deposits of from $25 to $100 to his credit on an average of two or three times a week, Lambert and Grisham, on the morning of February 16th, took appellant Posey on to the third floor of the store building and accused him of stealing from the cash register. He denied the charge in toto; they then took him to the office of the president, Mr. Barrett, and there again accused him, and he again denied the accusation. From there they went to the office of John Worsham, attorney for the hardware company, but Worsham not being in, Barrett went out to find him, while Lambert, Grisham, and Posey took a seat in the rear room of the office. Soon thereafter Barrett and Worsham came in and, entering the rear room, closed the door.

After this, according to the evidence of appellant Posey, the four men, Barrett, Lambert, Grisham, and Worsham, accused him of stealing from the company and for about two hours imprisoned him and sweated him in an effort to make him confess he had been stealing from the company and to extort from him his property and money by threatening to indict and prosecute him for embezzlement, a felony, and cause him to be confined in the state penitentiary. Posey says, being without advice or counsel of friends, he was so frightened and harassed and intimidated that he finally consented to convey to the company, of which his tormentors were its principal stockholders and officers, his residence that had cost him $7,000, another house and lot in the town worth $3,500, a one-half interest in a farm worth $3,500, three or four building lots in a suburb of the city worth $400, and some stock in two or three corporations and a bank account of more than $1,400, and other personal property, all of the value of $20,000 or more; that he was imprisoned and under fear and duress at the time he consented to so convey his property and at the time he actually executed the deed conveying the same to the appellee corporation, and that he would not have done so but for fear of personal violence from the said four men who were each larger than himself and physically stronger, and the fear that if he did not do so they would attach his property and issue a warrant for him and cause his arrest and imprisonment, and would, pursuing a previously perfected design and arrangement, falsely accuse him and convict him to a term in the penitentiary; that while in this condition he did reluctantly and unwillingly convey the property now in controversy to appellee corporation. He says that Barrett, Lambert, Grisham, and Worsham promised him if he would convey his property to the corporation that they would not prosecute him for the theft of which they accused him, and further urged him to leave the state in order to avoid prosecution upon the charge, and for that purpose gave back to him, out of the funds forced from him, $500, that he might pay his expenses to Texas to which state they suggested he go.

Appellant Posey testified to all the foregoing and was supported in part by the testimony of his wife, who gave evidence that her husband came home on February 16th, about 1 o'clock in the afternoon, in a very excited condition and was crying and in such a nervous state that he was unable to tell her in full what had happened; that she first refused to sign the deed conveying the property to appellee company, but that she, out of fear lest her husband should be prosecuted and wrongfully convicted by the said four men upon a false charge of embezzlement, did sign the deed under protest; that she did so without the advice of any friend or lawyer; that the said four men refused to give her time in which to have such consultation and advice. A brother of appellant Posey also testified that when he went to the home of appellant in the afternoon he found appellant lying on the bed with his head covered up and crying, and so nervous that appellant could not and did not give the witness any definite information as to what was the matter.

All this is denied in the evidence of Barrett, Lambert, Grisham and Worsham. Mr. Barrett is president of the appellee corporation and, according to the evidence, is a man of money and of wide business experience. Lambert and Grisham were in...