Thompson v. Pioneer Press Co.

• Decision Date: 27 July 1887
• Citation: 33 N.W. 856,37 Minn. 285
• Parties: THOMPSON v PIONEER PRESS CO.
• Court: Minnesota Supreme Court

37 Minn. 285

33 N.W. 856

THOMPSONvPIONEER PRESS CO.

Supreme Court of Minnesota.

July 27, 1887.

(Syllabus by the Court.)

When the case is such that the court would be compelled to set aside a verdict, if rendered in favor of a party, because not reasonably supported by the evidence, the court may direct a verdict for the opposite party.

The testimony of a party in his own behalf considered to be so unreasonable and inconsistent, and so opposed by undisputed circumstances and by other evidence, as to be unworthy of credit, and as justifying the court in directing a verdict against such party, as respects particular matters in issue. MITCHELL., J., dissenting.

The truth, when relied upon in justification of a libel, must, to constitute a complete defense, be as broad as the defamatory accusation.

Evidence of the truth of a libelous accusation relied upon in justification, held not such as to have authorized the court to direct a verdict for the defendant as to this issue. GILFILLAN C. J., dissenting.

Appeal from district court, Hennepin county.

Hart & Brewer, for Thompson, appellant.

Wilson & Lawrence, for Pioneer Press Co., respondent.

DICKINSON, J.

This is an action for a libel in which the plaintiff was charged with the embezzlement of the money of his employers, Farnham & Lovejoy; with seeking to blow open their safe, and steal and destroy their books; and with perjury. The defendant alleged the truth of these charges in justification. After a trial upon the issue thus presented, the court directed a verdict for the defendant; and this is the assigned error upon which the case comes here. It is hence necessary for us to consider whether the evidence was such as would have reasonably justified the jury in rendering a verdict for the plaintiff, or whether the guilt of the plaintiff was so conclusively shown by the case that such a verdict should not have been allowed to stand. We will first consider the charge of embezzlement.

The partnership of Farnham & Lovejoy were doing an extensive business at Minneapolis in the manufacture and sale of lumber. In the spring of 1879 the plaintiff was employed by them as their book-keeper and cashier. He remained in that employment until September, 1882. During this time it was the plaintiff's duty to receive, dispose of, and account for all moneys coming in from the partnership business. The books of the office, as kept, consisted of a day-book or blotter, in which original entries were made of transactions as they occurred; a journal, to which the blotter entries were transferred; and a ledger, which was posted from the journal. There was no separate cash-book kept in the usual way of keeping such books, although it is claimed on the part of the plaintiff that there was what was called a petty cash-book, to which we shall hereafter refer. The “cash” account, as kept in the ledger, was intended to show the actual cash transactions and state of the accounts. The sums with which “cash” was there debited should represent and show all of the money received, and the sums with which “cash” was credited should represent the amounts paid out by the plaintiff; and the difference should be in his possession in money. One source from which large amounts of money came into the hands of the plaintiff, as cashier, was as follows: One Crombie had charge of the lumber yard, and of sales there made. He received the price of lumber sold in the yard, entering it in a book kept by him for that purpose. This money he paid to the plaintiff at the office, rendering also an account of his sales from his book. These transactions were then entered in the office day-book, (blotter,) and should have been subsequently, in the course of the office work, transferred to the journal, and posted in the ledger. The work of transcribing the entries from the day-book to the journal, and the posting in the ledger, was done by the plaintiff personally.

Without referring particularly to an error of three dollars occurring in May, 1879, we look to the manner of keeping the accounts commencing December 19, 1879, and as it continued through the remainder of the period of the plaintiff's employment. In that month the plaintiff, in posting in the “cash” ledger account, raised three several items, as appearing in the journal entries, to the aggregate amount of $329.02; thus making it to appear in the cash account that that amount of money had been paid out, which did not appear in the other books to have been disbursed. In the following month, January, 1880, in posting to the same account in the ledger, the plaintiff reduced the journal entries of cash received, in three instances, the reduction aggregating $225. Three smaller errors of the same kind occurred in February and May following,and subsequently other irregularities of a like kind, to the amount of about $700, to which we need not further particularly refer. Passing over two or three other errors, we come to November, 1880, when a cash item of $1,162.21 appears to the credit of the ledger cash account which does not appear on the day-book or journal. From the beginning of May, 1881, until the close of his service, and covering every month in that period, the plaintiff, in transferring entries from the day-book to the journal, designedly, and not by mistake, dropped numerous items of cash received by him from sales by Crombie, so that they neither appeared in the journal, nor, of course, were they charged in his ledger cash account, as money received should have been. Yet the items thus dropped from the accounts were checked in the margin, in the manner indicative of their having been carried on or posted, as was done with items actually posted. These sums thus dropped from the accounts, and never charged in the cash account, amounted to more than $10,000, and the aggregate of the irregularities here referred to was about $17,000; yet, when the employment ceased, this cash account, made up in this manner, with this large amount of fictitious entries, and of actual receipts, omitted from it “balanced;” no amount of cash being turned over by the plaintiff in excess of what appeared as cash on hand in the account made up in this manner.

The facts which we have now stated are shown in the case beyond any question or dispute, and for the most part are admitted by the plaintiff himself. In the absence of any explanation of such extraordinary transactions, from the plaintiff, exculpating himself, there could be but one conclusion as to his guilt. He seeks by his own testimony to offer such an explanation. It is, in substance, this: He received the money. But it was the habit of Lovejoy, who was the financial manager of the firm business, to take from the plaintiff, from time to time, money for use, as he (Lovejoy) said, in affairs of the firm, outside of the business to which these books related. He would take money, also for use in this firm business, without knowing at the time just how it would be used. In these cases he instructed the plaintiff to make no entry of the money so taken until he should report what had been done with it, which he often did not do. In this way the cash shown by the books to have been received was continually short, because of there being no corresponding charge of these funds taken by Lovejoy. Upon complaining to Lovejoy of this, the plaintiff was directed by Lovejoy to falsify his accounts in the manner above shown, and to make entries arbitrarily to balance his accounts. He instructed the plaintiff, in posting from his book of original entries to drop items of money received, so that his cash account would balance, and upon that instruction, and for the purpose only of balancing his cash account, he pursued the course of dropping items of money received from Crombie. He says also that he did in fact keep a small book, referred to as a petty cash-book, in which he set down all cash items, including the money paid to Lovejoy, and that he left that book in the office when he was discharged. It is a matter of dispute whether there ever was such a book. The plaintiff's testimony of such a book being kept as a part of the office accounts is opposed by the evidence of the other witnesses, who must have known the fact if it had been so. But, in our opinion, if there was such a book, it does not much help the plaintiff's case.

This, in brief, is the manner in which the plaintiff accounts for the disposition of about $17,000 of money received by him, but which is neither found in his hands, nor charged in the regular account-books kept by him. This deficiency was unknown to any one, unless Lovejoy is to be excepted, until it was disclosed by an expert examination of the books, after the plaintiff was discharged. Such, at least, is the evidence, and there is nothing opposing it save the inferences which may be drawn from the plaintiff's account of the transaction, which we have stated in substance. He does not claim that Farnham, who was actively interested in the business, was ever informed of these irregularities, or that he knew anything about them, unless knowledge is to be inferred from the alleged fact that it was all done under the direction of Lovejoy. It is not claimed that any other person took the money or falsified the accounts. In brief, the only conclusion possible, or claimed to be possible, is, either that the plaintiff converted the money to his own use, and falsified the accounts to conceal the embezzlement, or that Lovejoy took the money from the plaintiff, and directed him to pursue this system of falsifying the accounts in the manner stated, so that they would balance, notwithstanding the moneys taken by Lovejoy and not charged. The...