The Massachusetts Mutual Life Insurance Company, Respondent, v. James Carpenter, Appellant

The Massachusetts Mutual Life Insurance Company, Respondent, v. James Carpenter, Appellant. (Argued April 24, 1872; decided April 30, 1872.) Action to recover moneys received by defendant as plaintiff’s agent. Defendant was employed as agent for plaintiff in the city of New York, under a contract, by which he was to receive a certain sum in full ‘for services. The company provided ail office, and the contract contained this clause: “Rent of desk-room equivalent of clerk hire.” Defendant employed a clerk, who abstracted $'939.13. Defendant took a note from him, upon which small amounts were paid. Defendant, in July, 1867, being about to retire from the company’s service, rendered an account and credited himself with the balance of the note. In August, 1867, he took a new note in the company’s name and sent it to the company. The latter immediately returned it, and notified defendant to pay the loss. Defendant claimed that the clerk wq,s plaintiff’s servant, and that the July account was ah account stated. Held, that the clerk was servant of defepdant, who was responsible for the sum embezzled; that even if the July account was an account stated, it simply imposed upon the plaintiff the onus of proving the charge erroneous, and, this having been done, the right of recovery was established. Amos G. Hull for the appellant. John L. Gadwalader for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed, with costs.