J. & W. C. Shull v. American Surety Co.

This appeal is from a judgment which was rendered in favor of the plaintiff in an action brought by it against the defendant on a bond, by which, in effect, the defendant bound itself to reimburse the plaintiff for any pecuniary loss which the latter might sustain “by any act or acts of larceny or embezzlement” of any of the employees of the plaintiff.

The judgment included a recovery as to each of two separate items set forth in the complaint: First, as to an item for the value of a shortage of lumber, etc.; and secondly, as to the amount of certain cash alleged to have been either stolen or embezzled by the defendant Filger.

The first contention of the appellant is that the evidence conclusively establishes the fact that no shortage of lumber existed. In that connection, it appears that although the single witness, upon whom plaintiff relied to establish the facts necessary to prove the shortage of lumber, testified from a general memorandum which theretofore, after an examination by him of the account books of the plaintiff, he had prepared and which purportedly showed that such shortage existed,—on being recalled as a witness for the defendants, at which time said account…