Salem Light & Traction Co. v. Anson
| Decision Date | 28 July 1902 |
| Parties | SALEM LIGHT & TRACTION CO. v. ANSON. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.
Action by the Salem Light & Traction Company against F.R. Anson. From a judgment for plaintiff, defendant appeals. Affirmed.
This is an action in trover for money alleged to have been collected by the defendant for the plaintiff and converted to his own use. The complaint alleges that the plaintiff is a corporation engaged in the conduct and operation of street railways and an electric light and power plant in the city of Salem; that from June 1, 1898, to October 20, 1899, the defendant was the managing agent of the plaintiff, and as such had the care and control of its properties, the collection of amounts due it, and the supervision of the keeping of its books of account; that between the dates named he received and collected for and on account of the plaintiff large sums of money due it for light furnished and other services rendered to the state of Oregon, Marion county, and divers persons, firms, and corporations, and wrongfully and unlawfully, and with intent to deprive the plaintiff thereof appropriated and converted to his own use, of the moneys so collected and received, the sum of $3,387.18, to the plaintiff's damage in that amount; that the moneys so collected consisted of gold and silver coin of the United States and other current moneys, and, as the books of account with reference to the plaintiff's business were kept by and under the direction and control of the defendant, the plaintiff is unable to give a more specific description of the money converted by him. For a further and separate cause of action, it is alleged that in October, 1899, the plaintiff was the owner of a warrant issued by the city of Salem in payment of services rendered it, for $153.05, and another warrant issued by Marion county for services rendered it in the sum of $35, and that the defendant obtained possession of both of said warrants, and wrongfully converted the same to his own use, to the plaintiff's damage in the sum of $195. The answer admits the incorporation of the plaintiff the defendant's employment as manager between the dates alleged in the complaint; that as such manager he collected large sums of money due from its patrons; but denies that he wrongfully or unlawfully or at all converted to his own use $3,387.18 thereof, or any other sum. The answer admits the conversion by defendant of the city and county warrants, as alleged in the complaint, but denies that it was wrongfully or unlawfully done. For a further and separate defense to the second cause of action, it is alleged that the defendant was the duly appointed managing agent of the plaintiff, and as such had authority to receive and collect all moneys due it for services rendered, and to pay out and disburse the same in payment of current obligations, and that, acting as such agent, he received the two warrants referred to, and converted the same into cash for the use and benefit of the plaintiff. A reply put in issue the new matter alleged in the answer, and upon motion of the plaintiff, over the objection and exception of the defendant, the court referred the cause to a referee to take and report the testimony; but thereafter, by stipulation of the parties, the defendant not waiving his objection to the order of reference, the cause was tried before the court without the intervention of a jury. From the testimony submitted, the court found, in substance; (1) That during July, 1898, the defendant, as manager and agent of the plaintiff, received from the state of Oregon $2,439.06, and from the city of Salem $799, on account of services rendered by plaintiff, and paid over and accounted for only $1,968.30 of the former sum, and $707.28 of the latter, leaving a balance of $562.48, which he appropriated and converted to his own use; (2) that during the month of March, 1899, the defendant collected of divers and sundry persons, firms, and corporations $760 due the plaintiff for services rendered by it, and failed to account for any part of said sum, but, on the contrary, with intent to defraud and deceive the plaintiff, caused false entries to be made on its books, which were under his charge and control, to the effect that the said sums had been expended for stores purchased by him, when in fact no such purchases had been made; (3) that during the month of September, 1899 he collected and appropriated to his own use $2,050.55 due the plaintiff from divers persons, firms, and corporations and caused a like false and fraudulent entry to be made in the books of the company; (4) that in October, 1899, the defendant collected from the city of Salem $153.05, and from Marion county $35, due the plaintiff, and fraudulently and unlawfully failed to account therefor, but appropriated and converted the same to his own use. As conclusions of law, the court found that, by reason of the wrongful acts aforesaid of the defendant, the plaintiff was damaged in the sum of $3,561.08, and entered judgment accordingly, from which defendant appeals.
Tilmon Ford and W.T. Slater, for appellant.
Geo. G. Bingham, for respondent.
BEAN J. (after stating the facts).
It is first insisted that the court erred in referring the case to a referee. The statute provides that the court may, upon the application of either party, or upon its own motion, direct a reference "when the trial of an issue of fact shall require the examination of a long account on either side." Hill's Ann.Laws Or. § 222, subd. 1. This provision of the statute is not an infringement of the constitutional right to a trial by jury. Tribou v Strowbridge, 7 Or. 156; Trummer v. Konrad, 32 Or. 54, 51 P. 447. Nor is any distinction made between an action on contract and one of tort, but either may be referred if it involves the examination of a long account. As to what constitutes such an account, within the meaning of the statute, has not been, and, in the nature of things, cannot be, exactly determined. Each case must depend upon its own facts. Mitchell v. Association, 38 Or. 503, 63 P. 881. Where, however, the conclusion can be fairly drawn from facts disclosed by affidavit, or upon the face of the pleadings, that so many separate and distinct items will be litigated or examined that a jury cannot keep the evidence in mind in regard to each item, the case may be referred; and where there is a conflict in the evidence, or there is reasonable ground for controversy, as to whether the issue involves the examination of such an account, and the court below has decided to refer the cause, its conclusion will not ordinarily be disturbed on appeal. It is only when it clearly appears that no such account can be involved that an order of reference will be reversed. Welsh v. Darragh, 52 N.Y. 590. This case comes within the principle stated. It not only appeared upon the face of the pleadings, but from the affidavit of the manager of the plaintiff company, that the trial would necessarily involve the examination of the accounts of plaintif...
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