State v. Clayton

15 P.2d 1057, 80 Utah 557, 1932 Utah LEXIS 45

• Court: Utah Supreme Court
• Decided: November 16, 1932
• Docket: No. 5183.
• Status: Published

Opinions

STRAUP, J.

The defendants, Heal and Clayton, in the Fourth judicial district, by information, were jointly charged with the crime of embezzlement. They were tried separately; each defendant being represented by different counsel. Both were convicted, and both appeal. Each filed and presented to this court a separate and complete record of the cause. There is no substantial difference in the records. Separate briefs were filed in each case. The Clayton Case was filed first in this court. The two cases, however, were argued and submitted together at the same time and at the same term.

Both defendants complain of the sufficiency of the information, the sufficiency of the evidence to support the information and the verdict, portions of the charge to the jury, and of the court’s refusal to charge as requested by the defendants. As the Clayton Case was filed first, we shall first consider that case. What is said concerning it equally applies to the Heal Case.

The substance of the information is that Heal was president of the Provo Consolidated Real Estate Company, a domestic corporation doing business at Provo, Utah; that Clayton was the secretary of the company, and that both were its managing officers; that on May 7, 1928, John Bestelmeyer at Provo executed and delivered to the real estate company his check drawn on the Knight Trust & Savings Bank of Provo in the sum of $1,208.67, payable to the order of the real estate company, which “check was delivered as aforesaid for the use and benefit of Janie Smith, and that Heal and Clayton, as officers of the Provo Consolidated Real Estate Company, by and through the Provo Commercial & Savings Bank (at Provo), did on the 9th day of May, 1928, present said check to the said Knight Trust & Savings Bank for payment and received the sum of $1,-208.67,” lawful money of the United States; that Heal and Clayton as officers of the real estate company being “intrusted with said check and said money, the proceeds of said check, as bailee of Janie Smith, and the said check and the said money, the proceeds thereof, together with other money paid to the Provo Consolidated Real Estate Company, a corporation, prior thereto, was intrusted to and received by” Heal and Clayton as officers of the real estate corporation to be delivered by them to the I. O. O. F. Home Board of Utah, a corporation, “for the purpose of paying a certain note secured by a real estate mortgage on property owned by Janie Smith, said note and mortgage being made and executed by said Janie Smith to Harvey Cluff and by said Harvey Cluff assigned to the said I. O. O. F. Home Board of Utah, a corporation, and being then and there owned and held by the said I. O. O. F. Home Board of Utah, a corporation, in the sum of $2,500.00,” and that Heal as president of the real estate company and Clayton as secretary thereof “being so intrusted as bailee of said check and the said money, proceeds of said check, to the amount and value of $1,208.67, the property of Janie Smith,” as officers of the real estate company, failed and neglected to deliver the moneys of the said check to the I. O. O. F. Home Board of Utah to pay the note and mortgage “in accordance with the terms of said bailment,” and that on the 9th day of May, 1928, Heal and Clayton, as officers of the real estate company, “wilfully, unlawfully, fraudulently and feloniously converted the check and proceeds thereof to their own use.”

A general and a special demurrer were interposed to the information, both of which were overruled. A plea of not guilty was thereupon entered. The substance of the evidence adduced by the state is that the Provo Consolidated Real Estate Company was a corporation organized under the laws of Utah in 1917 to do a general real estate business at Provo; to buy and sell real estate and negotiate and effect sales of lands; to act as agent for owners in the collection of debts and rentals; to do a general brokerage business in notes, mortgages, stocks, etc., and in buying and selling them; to borrow money for the benefit of the corporation ; to negotiate, place, and collect loans of money for a commission; and to do all things necessary and relevant to a general insurance, loan, and real estate business. The company was capitalized for 5,000 shares of the par value of $1 each, of which Heal, as an incorporator, held one share, and was elected secretary and a director of the company. The remaining shares were subscribed for and held by others.

Clayton was not an incorporator, nor then an officer of the company. In 1921 Heal was elected president and a director of the company and Clayton a director, secretary, and assistant treasurer. Heal then held 1,000 shares. Just what Clayton then held is not made to apepar, but in May and October, 1924, Heal held 2,830 shares and Clayton 1,419 shares. The evidence shows that from thence on Heal and Clayton constituted the managing officers of the company.

From 1923 to June 30, 1929, Janie Smith did business with the company. The state put in evidence an itemized account of her transaction with the company between such dates. An account, which was a final account, was furnished her by the company June 30, 1929. The correctness of it in no particular was questioned or challenged. The more important business transactions had by her with the company began in January, 1924. At that time she, through the company, obtained a loan of $2,500 from one H. Cluff. She gave her promissory note therefor, the payment of which was secured by a mortgage on real estate owned by her. The principal of the note was “payable three years after date (January 15, 1924) with privilege of paying off at any interest paying period after one year.” The interest at the rate of 8 per cent per annum was payable “quarter yearly.” The moneys obtained by the loan were with the consent of Mrs. Smith paid to the real estate company and credited to her account. Some of the moneys, as directed by her, were paid and applied by the company to obligations owed by her. Part thereof was paid to her. The interest as it matured on the note was paid to Cluff by the real estate company out of moneys held by it to the credit of Janie Smith. Cluff on December 22, 1924, assigned the note and mortgage to the Home Board of the I. O. O. F. of Utah to secure the payment of a note given by him to the Home Board for money borrowed by him from it. The Cluff note was paid, and on February 19, 1929, the Home Board, at the request of Cluff, assigned the Smith note and mortgage to Freda Cluff, the former wife of Cluff. Not anything is made to appear that the real estate company or Heal or Clayton had any notice or knowledge of such assignments. At the time of the trial, the interest but no part of the principal of the Smith note had been paid.

On April 30, 1926, Janie Smith by written contract sold the real estate, upon which she had given the mortgage, to Margaret Bestelmeyer for $8,000, $1,000 of which was paid in cash, $1,000> to be paid August 30, 1926, and $500 on April 30 of each year thereafter until the sum of $8,000 was fully paid, together with interest at 8 per cent per an-num on all deferred payments; the interest payments being payable semi-annually. The contract provided all payments, both principal and interest, were to be made to the Provo Consolidated Real Estate Company. It further provided that the seller, Janie Smith, had the right to execute and maintain a loan secured by mortgage on the property not to exceed $2,500. The sale of the real estate was negotiated by an agent of the real estate company other than Heal or Clayton, for which negotiation the agent was allowed a commission of $400 which was charged against the account of Janie Smith. At that time the account between her and the real estate company showed a credit in her favor of $4,643 and a debit of $3,381, or a credit balance over the debit account of $1,262. The $1,000 paid in cash in the real estate transaction was paid by check of J. M. Bestelmeyer, the husband of Margaret Bestelmeyer, payable to the order of and was paid to the real estate company and credited to the account of Janie Smith. On Septerber 8, 1926, Bestelmeyer paid an additional $1,000 on the purchase of the real estate; on July 16, $38; on December 16, $278; on February 25, 1927, $500; and on May 7,1928, $1,208.67 — all of which payments were made to the real estate company and were credited to Janie Smith.

Thereafter five additional interest payments were made to the real estate company by Bestelmeyer, a payment of $200 on the principal March 28, 1929, and on June 8 a further payment on the principal of $700, all of which were also credited to the account of Janie Smith. The last interest payment made was June 30, 1929. After May 8, 1928, when the payment of $1,208.67 was made, the real estate company by about twenty different payments up to June 28, 1929, paid interest on the Cluff mortgage and cash to Janie Smith amounting to over $500 and charged such payments against her account. On June 30, 1929, there was a balance remaining unpaid on the Bestelmeyer contract of about $4,428 and some unpaid interest. On December 20, 1929, the amount remaining unpaid, including interest, amounted to $4,616.31, which by April 30, 1930, was reduced to $4,546.40. On June 30, 1929, when the final account was rendered, Janie Smith had a credit of $5,698.13 and was charged with a debit of $2,192.13, showing that her credit account exceeded the debit account by $3,500. The real estate company then agreed to pay the Cluff mortgage of $2,500, which, by the account rendered, was charged against Janie Smith, leaving a balance credit in her favor of $1,000, for which the real estate company gave her its promissory note, which was accepted by her, and in that manner the credit and debit accounts were balanced. It further was shown without dispute that the real estate company gave Mrs. Smith credit for interest at the rate of 8 per cent per annum on all moneys to her credit over and above her debit account, some of which was paid to her.

The account so rendered shows numerous transactions had between Mrs. Smith and the real estate company, the principal items of which consisted of the loan of $2,500 obtained for her and the sale of the real estate negotiated for her, by the real estate company, the negotiations of which were had and conducted by its agents other than Heal or Clayton. Clayton, by his testimony, explained each item of the account in detail showing a running account between Mrs. Smith and the real estate company from 1923 to June 30, 1929. He testified, and it is not denied by her, that she frequently came to the office and checked over her account, especially in May and in June, 1929, and on divers times prior thereto. He testified that in June, 1929, when her account was cheeked up and when it was shown she had a credit balance of $3,500 over and above the debit account, she stated there then was enough credit to pay off the Cluff mortgage, and asked that $2,500 be paid for such purpose; that, upon being asked what she desired done with the balance of $1,000, she stated she did not need the money right then, and arranged to leave such balance with the company; that he told her the company did not then have sufficient funds to pay the Cluff mortgage, but as soon as it was in funds the mortgage would be paid. Such testimony is not denied by Mrs. Smith, except by her testimony that in March, 1930, when she called at the office of the real estate company and at other times thereafter she demanded of Heal and Clayton her deed and mortgage and other papers and that they promised to get them for her but failed to do so.

Just when the real estate company ceased to do business is not shown. Counsel have not advised us as to that. All we have observed in such respect is the testimony of one of the witnesses who testified that he was the assignee of the real estate company appointed by the court for the benefit of creditors. When that was done is not shown.

The embezzlement charged and relied on by the state relates to the $1,208.67 payment made by Bestelmeyer May 7, 1928, on the purchase of the real estate. In such particular it is charged that such moneys were received by Heal and Clayton for the use and benefit of Mrs. Smith, that such moneys were intrusted to them as officers and agents of the real estate company to be by them paid on the Cluff mortgage, but that they, in breach of such trust, unlawfully, etc., converted such moneys to their own use. She testified that when the real estate was sold she had a conversation with Heal and Clayton wherein she told them that, as the principal was paid, she wanted it applied on the Cluff mortgage until it was paid. The interest paid on the real estate transaction was to be paid either to her or credited to her. She testified the next transaction had with Clayton was along the first months of 1929. At that time she testified Clayton gave her a receipt which was dated back to May 8, 1928, and which recited, “Received from Janie Smith $2,500 payment from J. M. Bestelmeyer for contract, paying mortgage to Harvey Cluff in full,” which was signed, “Provo Consolidated Real Estate Company, By J. P. Clayton.” The state also put in evidence a receipt dated May 7, 1928, which recited, “Received of J. M. Bestelmeyer $1,208.67 payment on contract with Janie Smith,” which also was signed, “Provo Consolidated Real Estate Company, By J. P. Clayton,” She testified she had no further conversation with Heal or Clayton until March 15, 1930, when she and her two sons went to the office of the real estate company and there had a conversation with Heal, either in the presence or in the hearing of Clayton, in which conversation she asked Heal for “my deeds and the mortgage on the place,” and that Heal said, “We have taken your'money and spent it and your mortgage is not paid; what are you going to do about it; there isn’t enough money paid in at one time to pay on the mortgage.” She disputed that, and claimed that as low as $50 could have been paid on the mortgage, which Heal disputed ; that he told her times had been hard; that they went behind, and offered to give her second mortgages to secure her, but she declined to accept them; that she then told Heal that she had a “receipt paid in full to Harvey Cluff for $2,500.00”; and that thereupon Heal turned to Clayton and asked him if he had given her such a receipt and Clayton replied he had. As to that conversation Mrs. Smith was corroborated by her two sons. The defendants denied any such conversation, and also denied that Mrs. Smith had asked them to apply the moneys received from Bestelmeyer on the Cluff mortgage as the principal on the sale of the land was paid.

As has been seen, the Bestelmeyer check, the moneys which it is charged were embezzled by and converted to the use of Heal and Clayton, was payable to the order of the real estate company. The check was handed to Clayton. He put it in the cash drawer of the company. The next day an employee of the company other than Heal or Clayton, together with a number of other checks all aggregating $1,816.56 in the regular course of business, deposited them with the Provo Commercial & Savings Bank, the bank with which the real estate company did business, and the real estate company and not Heal or Clayton was given credit therefor. And in the regular course of business, the check, by the Provo Com mercial & Savings Bank, was presented to the Knight Trust & Savings Bank and was paid by it. The amount so deposited, including the $1,298.67 check, was by the Provo Commercial & Savings Bank applied to an overdraft of the real estate company of $811.37, and the company given credit for the balance; but on May 11, 1928, two or three days thereafter, the real estate company had a credit balance at the bank of $3,681.15 and on June 23, 1928, a credit balance of $3,982.84. How the account thereafter stood at the bank is not shown. No part of the moneys of the $1,208.67 check was received by either Heal or Clayton, nor was any part thereof applied to the use or benefit of either. By the terms of the contract of the sale of the real estate, the payments, both principal and interest, were required to be and were paid to the real estate company, not to Heal or Clayton. All of the payments were so paid, and all of them credited to the account of Mrs. Smith. The $1,208.67 cheek was handled in the same way as all other checks paid in by the Bestel-meyers were handled.

The argument is that, as testified to by Mrs. Smith, Heal and Clayton at her request agreed to apply on the Cluff mortgage the principal of the sale of the real estate sold to the Bestelmeyers, and, since Heal and Clayton, as managing officers of the real estate company, could so have applied such moneys but failed and neglected to do so, such failure rendered them guilty of embezzlement; and, too, guilty of the charged embezzlement, of converting such proceeds, not to the use or benefit of the corporation, but to their own use and benefit. In support thereof, the state refers to Comp. Laws Utah 1917, § 8307, and to the cases of People v. Floyd, 78 Cal. App. 11, 247 P. 917; People v. Wardwell, 77 Cal. App. 44, 246 P. 97; Hinds v. Territory, 8 Ariz. 372, 76 P. 469; People v. Cobler, 108 Cal. 538, 41 P. 401; People v. Roberts, 85 Cal. App. 697, 259 P. 1009; People v. Whalen, 154 Cal. 472, 98 P. 194. The section referred to provides:

“Every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation, public or private, who fraudulently appropriates, to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes the same, with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement.”

As is seen, the statute applies to persons who are officers or agents of and occupying a fiduciary relation with an association, society, or corporation, public or private, and to whom property of the association or corporation, etc., has been instrusted, and who fraudulently appropriate it to a use or purpose not in the due and lawful execution of the trust. In other words, it applies to an agent or officer characterized by the statute who fraudulently appropriates property of the association or corporation, private or public. • And to that effect are the cited cases, cases where the agent or officer of a city, county, bank, or other corporation, appropriated moneys or property of the city, county, bank, or other corporation. But that is not this case. It is not charged, nor does the evidence show, that Heal or Clayton appropriated any moneys or property of the real estate company of which they were agents and officers. What in such respect is charged by the information is that they appropriated and converted moneys, the property of Janie Smith, to their own use and benefit; but the evidence does not show they did that. It does not show that they appropriated or converted anything to their own use or benefit. True, the evidence shows that the agreement, as testified to by Mrs. Smith, that moneys paid on the principal of the real estate sold to the Bestelmeyers was to be applied to the Cluff mortgage, was not carried out. But the agreement was not the individual personal agreement or promise of Heal or Clayton. It was the agreement of the corporation, the real estate company. Of course, the agreement, as testified to by Mrs. Smith, was made with Heal and Clayton, not in their individual capacity, but as agents and officers of and for and on behalf of the real estate company to whom the moneys were to be paid and with whom Mrs. Smith had all her dealings and who by agents other than Heal or Clayton obtained the loan and sold the real estate for her. There was no fiduciary relation shown between her and Heal or Clayton. Whatever fiduciary relation there was, if any, was between her and the real estate company. Because she directed the officers or agents of the corporation how moneys paid in, not to them but to the corporation, for her use and benefit, were to be applied, does not create any fiduciary relation between her and the officers and agents of the company. Whatever civil liability, if any (14a C. J. 177) of Heal or Clayton there may be, because they are managing officers of the real estate company, did not see that the moneys paid in to the corporation by Bestelmeyer were applied on the Cluff mortgage, or failed to apply or cause them to be so applied, is one thing; but to hold them criminally liable for such failure is quite another and a different thing. We think the case of Weber v. State, 190 Wis. 257, 208 N. W. 923, 45 A. L. R. 928, is good authority that they, under the undisputed evidence in the case, may not so be held. The facts with respect to the particular point in hand in that case are similar to the facts in this. It is not necessary to review them here. They may there be read.

We are not unmindful of the claim made that Heal and Clayton held and controlled most of the outstanding capital stock of the real estate company and that thus what was paid to it and deposited in its name was in effect paid to Heal and Clayton and inured to their use and benefit. The information does not proceed on any such theory. It is not charged that Heal or Clayton wrongfully or unlawfully converted the check or the proceeds thereof to the use or benefit of the real estate company or that they by so doing derived any benefit therefrom. Indisputably the dealings had by Mrs. Smith were with and in the name of the company and not with its agents or officers personally or as individuals. As individuals neither Heal nor Clayton had assumed or undertaken to do anything. It is not claimed by Mrs. Smith that they did. Let it be assumed that directors and officers of a corporation may be held liable to persons who are injured by torts, fraudulent acts and misrepresentations of such officers, etc., but it does not follow in all such cases of civil liability, or for all breaches of corporate duty or obligations neglected to be performed or carried out by officers or agents of the corporation resulting in a loss or injury to a creditor, that such officers or agents may also be held criminally liable. While embezzlement is a criminal breach of trust, still every breach of trust is not nor is every fraudulent breach of .trust embezzlement. 20 C. J. 428.

Now as to the information: While in general language, some of which in form of conclusions, it is averred that the $1,208.67 check, the property of Janie Smith, was intrusted to Heal and Clayton as officers of the real estate company and as bailees of Janie Smith to be by them delivered to the I. O. O. F. Home Board in payment of a mortgage assigned to it, that they failed to do so and converted the proceeds to their own use, yet it further is alleged that the check was made, executed, and delivered by Bestelmeyer to the real estate company, and that the proceeds thereof, as well as other moneys, were paid to it. To charge that the check was “intrusted” to Heal and Clayton “as bailees” of Janie Smith, without sufficient allegations of fact showing such a relation, is of little moment, and is inconsistent with the further allegations that the check was made, executed, and delivered to the real estate company and the moneys paid to it. If the information is not vulnerable as against the general demurrer, it is as against the special demurrer also lodged against the information on the ground of uncertainty, ambiguity, and failure to charge an intended offense in clear and concise language.

However, regarding the information on the theory contended for by the state, we think the evidence is insufficient to sustain it or to justify the verdict. That is especially true as to the allegations whether regarded as averments or fact or conclusions that the $1,208.67 check or the proceeds thereof were “intrusted” to Heal or Clayton “as bailees” or that they or either of them converted the check or proceeds to their own use. That also is true as to the allegation that the check or proceeds thereof were delivered to Heal or Clayton to be by them delivered to the I. O. 0. F. Board. The evidence fails to show that the check was delivered either to Heal or Clayton or to the real estate company to be delivered, as alleged, to the board. On the contrary, the evidence, without dispute, shows that the check was issued and delivered by Bestelmeyer to the company for and in part payment of the contract of sale of the real estate and the proceeds thereof to be applied thereon. And so did the contract, by the terms of which the moneys were to be paid, provide. In accordance therewith the check was paid to the real estate company by Bestelmeyer, and was received by it, not in any character of trust or confidence, but as part payment of the contract as by its terms provided, and as such was credited to Mrs. Smith’s account, as were all other moneys received for and on her behalf; and as shown by the account rendered her, the items of which are not questioned, and, by the evidence, the dealings had by Mrs. Smith with the real estate company created but the relation of debtor and creditor and not one of trust in the sense required to constitute an embezzlement or a breach thereof. And, since the moneys held by the real estate company were not acquired or held in virtue of such a trust relation, no offense of embezzlement was committed by a failure or neglect to pay the moneys over. 9 R. C. L. 1274. Something more than mere access to and custody of property is required to constitute embezzlement. There must be a relation of trust and confidence imposed in the recipient of the thing appropriated and it must be by virtue of such relation of trust and confidence that the accused had access to or possessed or had control of the property. State v. Ugland, 48 N. D. 841, 187 N. W. 237; 20 C. J. 420.

Giving full credence to the testimony of Mrs. Smith, the effect thereof is that out of moneys received by the real estate company from the sale of the real estate to the Bestel- meyers sufficient of the principal thereof was, as directed by her to be applied in payment of the Cluff mortgage, which, as testified to by her, the company through Heal and Clayton agreed to do. But the obligation to do so was an obligation of the real estate company with whom and in whose name she transacted all the business for a period of four or five years on an open or running account. She knew that all the moneys paid on the sale of the real estate were to be paid and were paid to the company and she given credit therefor; that the $1,000 paid to the company when the contract was executed, the $1,000' paid thereafter in September, 1926, the $278 in December of the same year, and the $500 in February, 1927, were all credited to her account in the same manner that the check of $1,208.67, which it is claimed was embezzled, was also credited to her account, and that thereafter two other payments on principal, one of $200 and one of $700, also were received by the company and credited to her account. Just as well did she understand that what of such moneys were to be paid or applied on the mortgage were to be paid by the company as a company’s obligation. She was not misled or deceived as to that. Because the company failed to do so or because Heal or Clayton, as officers of the company, failed or neglected to cause such payments to be made, though such failure according to Mrs. Smith’s testimony constituted a breach of promise or of an agreement, yet may not be characterized as embezzlement. Fitzgerald v. State, 50 N. J. Law 475, 14 A. 746; State v. Butler, 21 S. C. 353; People v. Leipsic, 6 Cal. Unrep. 536, 62 P. 311; People v. Hurst, 62 Mich. 276, 28 N. W. 838, and People v. Bauman, 105 Mich. 543, 63 N. W. 516.

Had the company not ceased to do business and had it been solvent, but failed to apply the check or the proceeds thereof when received by it on the mortgage as directed by Mrs. Smith, and, as here, presented the check in the ordinary course of business to the bank for payment and the proceeds thereof credited to its account and used the moneys in its business, and credited the amount thereof to the ac count of Mrs. Smith in the same manner as all other moneys received by the company for and on her behalf were credited, we apprehend no one would feel justified in charging the company or its officers with embezzlement, though the company be liable in a civil action for whatever loss Mrs. Smith might have sustained by reason of such failure. So far as concerns the offense of embezzlement or other crime, the situation is no different because the company thereafter failed in business and was unable to meet its obligations.

Lastly, the theory must not be overlooked on which the charge as urged by the state was laid in the information and the case submitted to the jury, which is, that the Bestel-meyer check and the proceeds thereof were delivered to the defendants as officers of the company to be by them delivered to the I. O. 0. F. Board, that they failed to do so and converted the check and the proceeds thereof to “their own use,” not to the use of the real estate company, and the court expressly charged that, unless the jury found that the defendant had “converted the moneys to his own use,” they must acquit him. In that connection the court further charged:

“You are instructed that if you find from the evidence that by the agreement of Janie Smith with Margaret Bestelmeyer as shown by plaintiff’s exhibit 7 the payments to be made by said Bestelmeyer under said contract were to he paid to the Provo Consolidated Beal Estate Company or their order, and that there was no other agreement with respect thereto with the said Provo Consolidated Beal Estate Company; and that thereafter, on or about the 7th day of May, 1928, payment of a check for the sum of $1,208.67 was delivered to the defendant, J. P. Clayton, for the Provo Consolidated Beal Estate Company, and that said check was delivered to the possession of the said Provo Consolidated Beal Estate Company, then you are instructed that such facts fail to show that there was any trust relationship between the defendant, J. P. Clayton and the said Janie Smith, and under such facts, if you so find, it is your duty to find the defendant not guilty.”

The facts assumed or the hypotheses therein stated are established by the evidence without substantial conflict. All the payments made by the Bestelmeyers were to be paid and in fact were paid to the real estate company. There was no agreement that any of such payments were to be made otherwise. That the $1,208.67 check was delivered to Clayton for the real estate company, that the check was delivered to the possession of the company and was deposited by it in the bank to its credit, also is undisputed. Right or wrong, the jury were required to obey the charge. The verdict as rendered was in disobedience thereto, and thus against law as stated and directed by the court.

The same observations may be made of the following charge also given by the court:

“You are instructed that if you believe from the evidence that Janie Smith consented to the use of her moneys paid in by Bestel-meyer on the contract in evidence, plaintiff’s exhibit 7, and that the said company paid interest to the said Janie Smith on her balances as shown in her account with the said corporation or credited such interest with her knowledge and she accepted the same, then you are instructed that the relationship of debtor and creditor between said company and Janie Smith existed, and you are instructed that such facts will not support the charge of embezzlement as alleged in the information, and it is your duty to find the defendant, not guilty.”

As is seen, about all of the essentials embraced in such charge are established without any substantial conflict in the evidence. That Mrs. Smith did consent to the use of the moneys by the real estate company received by it and paid in by Bestelmeyer on the contract and that the company with the knowledge of Mrs. Smith credited all of such payments to her account and paid or credited her with interest on “her balances as shown in her account” with the company, are indisputably shown by statements of her account rendered her by the company, and especially by the last or final account rendered her June 80, 1929, and which was accepted by and testified to by her as correct and was put in evidence by the state as showing the transactions between her and the company covering a period of about six years. In such particular the $1,208.67 check was handled and credited in the same manner as were two prior checks of Bestelmeyer of $1,000 each, one of $278, and one of $500, and one subsequent thereto of $200, and one of $700 paid June 8, 1929, and all so exhibited in the account rendered her. That, the court charged the jury, constituted a relation of debtor and creditor and upon which a charge of embezzlement could not be predicated. Obedience to such charge required a verdict of not guilty. And further the propositions stated and considered in the instructions required the giving of the defendant’s request for a directed verdict of not guilty which was refused and of which ruling complaint also is made.

We thus are of the opinion that sufficient facts, outside the stated conclusions, are not alleged in the information to show a bailment or that the defendants were bailees, or that the check or its proceeds were intrusted to them in a fiduciary relation, and that the court erred in overruling the demurrers, that the evidence is insufficient to support the verdict, and that the verdict is in disobedience to and against the charge of the court, and that the court erred in refusing to direct a verdict as requested by the defendant.

The judgment is therefore reversed and vacated, and the case remanded for a new trial.

EPHRAIM HANSON, J., concurs.