Maxfield v. Seabury

84 N.W. 42, 81 Minn. 327, 1900 Minn. LEXIS 636

Opinion

PER CURIAM.

The facts in this case as detailed at the first trial are found in a former decision (75 Minn. 93, 77 N. W. 555), in which it was held that defendant had no right to assert a claim against the plaintiff, when submitting a balance sheet, as to any amount of the sum unlawfully appropriated by the cashier, Smith, prior to the sale by plaintiff's husband, L. H. Maxfield, and his withdrawal from the old firm, and the case was remanded for a new trial. It was again tried, by the court without a jury, and among the findings was one that the entire sum appropriated by Smith was taken at some time subsequent to September 29, 1893, his speculations having been discovered in February, 1895. On this finding judgment was ordered for defendant.

The real contention on this appeal, and the only question which needs to be referred to, is whether there was evidence tending to support the finding as to when Smith stole the money. We have carefully examined the testimony on which this finding must have been based. It is very slight, and not wholly satisfactory. A majority of the court think that a finding to the effect that it was impossible to determine when — with reference to Smith’s term of service — the money was taken could have been sustained much more easily. But we are compelled to admit that there was evidence introduced on the trial of this case tending to support the finding in question. It follows that it cannot be disturbed.

Judgment affirmed.