Stilley v. Dawsey, (No. 12781.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: STABLER
• Citation: 150 S.E. 763
• Docket Number: (No. 12781.)
• Decision Date: 11 December 1929
• Parties: STILLEY . v. DAWSEY et al.

150 S.E. 763

STILLEY .
v.
DAWSEY et al.

(No. 12781.)

Supreme Court of South Carolina.

Dec. 11, 1929.

Appeal from Common Pleas Circuit Court of Horry County; Wm. H. Grimball, Judge.

Action by W. A. Stilley against Rufus A. Dawsey and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Sherwood & McMillan, of Conway, for appellant.

H. H. Woodward and E. S. C. Baker, both of Conway, for respondents.

STABLER, J. [1, 2] The only question presented by the appeal in this case is: Did the trial judge commit error in directing a verdict for the defendants?

The action is on a fidelity bond and was tried at the November 1927, term of the court of common pleas for Horry county. From the record we gather that the defendant Dawsey was employed by the plaintiff for a period of one year, from August, 1922, to August, 1923, as manager of the plaintiff's filling station at Conway, S. C, at a salary of $100 per month; that under the terms of employment the plaintiff was to furnish merchandise to be handled and sold at the filling station, and Dawsey was to manage and control the business, handle and sell the merchandise, and account to the plaintiff from time to time in settlement for same. Dawsey was required by the plaintiff to give a fidelity bond, which was executed by him in August, 1922; the defendant United States Fidelity & Guaranty Company becoming surety thereon. Under the terms of the bond, the surety agreed to "reimburse the Employer for any pecuniary loss sustained, not exceeding Two Thousand ($2,000.00) Dollars, of money securities, merchandise or any property, occasioned by any act or acts of larceny or embezzlement by the Employee in the performance of the duties of the position as aforementioned, during the period commencing from August 17th, 1922, to August 17th, 1923, " subject to the conditions expressed in the bond.

The complaint alleged the employment of Dawsey as manager of the filling station and the execution of the bond sued upon, and that Dawsey, while acting as such manager, and while the bond was in full force and effect, breached the conditions of same, "in that between the dates of August 18th, 1922, and May 21st, 1923, this plaintiff delivered to the said Rufus A. Dawsey gasoline and merchandise in the sum of Fifteen Thousand Three Hundred Fifty-Seven and ³⁷/₁₀₀ ($15,357.37) Dollars, to be sold at a stipulated price and acounted for by the said Rufus A. Dawsey as manager of this plaintiff's filling...