August 12, 1916 



HOETICULTUEE 



225 



WHEN EMPLOYES, COLLECTORS 



OR AGENTS HOLD OUT 



MONEY. 



A case which recently came within 

 my own experience seems to make it 

 clear that there is need of explana- 

 tion as to the legal difference be- 

 tween money held — as for instance, 

 by an employee — under claim of 

 right, and money simply not turned 

 over, as where an employee collects 

 it and appropriates it to his own use. 

 In the first case it is never safe to 

 Issue a warrant, and he who does it Is 

 liable to be made defendant in an 

 action for damages for malicious 

 prosecution or false arrest. In the 

 second case arrest is not only safe, 

 but is the logical and proper thing to 

 do. 



Cases are constantly happening 

 wherein an employee whose duty it is 

 to collect money for his employer, 

 fails to turn it over. Sometimes, 

 perhaps usually, the reason is that he 

 has spent it. He is an embezzler and 

 •of course can and usually ought to 

 be arrested. But it often happens 

 that the employee refuses to turn it 

 over because he says he doesn't owe 

 it. His employer owes him some 

 thing, and he decides he will just 

 hold what he has collected as security 

 for his own claim. The employer 

 who arrests an employee that takes 

 tliat stand, even though the em- 

 ployee's claim is wholly unfounded, i"^ 

 very badly advised. 



Within the past month a case has 

 been decided ( Iowa Supreme Court) 

 which will serve as a verj' good illus- 

 tration. A corporation with head- 

 quarters in Scranton, Pa., employed 

 a local agent in an Iowa town, whose 

 ■work was supervised by a district 

 agent. The district agent discharged 

 the local agent: who at the time held 

 certain money belonging to the cor- 

 poration. Tlie district agent de- 

 manded the surrender of this money, 

 but the local agent refused, claiming 

 that the company owed him some- 

 thing. He refused to pay the com- 

 pany until the company paid him. 

 The district agent told the corpora- 

 tion that the local agent was short 

 In his accounts and asked if he 

 should have him arrested. The cor- 

 poration said to get the advice of a 

 certain attorney and follow it. The 

 local agent was arrested and later 

 lie sued for damages for malicious 

 prosecution. He recovered a substan- 

 tial amount. The corporation made 

 all sorts of defenses, mostly technical, 

 tut the court said that when it placed 

 the matter in the hands of the dis- 

 trict agent and the attorney, it had 

 practically consented in advance to 

 anything they did. Obviously, the 

 court said, the district agent thought 

 he could settle the matter quickly by 

 the use of criminal proceedings and 

 the corporation that gave him author- 

 ity to do that was legally responsible. 

 There is a very great and \ital dif- 

 ference between the act of a man who 

 says: "It is true I have some of your 

 money, but I refuse to turn it over 

 hecause I have a right to hold it." and 

 the act of a man who admits that he 

 has the money but sits silent when 

 payment is demanded. 



Not long ago in Chicago a commis- 

 sion merchant to whom certain eoods 

 were consigned, to be sold for the ac- 

 count of the consignor, held out part 



of the proceeds on the ground that he 

 was entitled to an increased commis- 

 sion on a certain part of the con- 

 signment. The whole amount was 

 less than $50. The consignor became 

 very angry and went to Chicago per- 

 sonally and had his consignee ar- 

 rested on a charge of larceny! 'When 

 the case was heard the court at once 

 set the consignee free, because he had 

 not stolen the money, but had held it 

 under a claim of right. And whether 

 the claim was good or bad made no 

 difference. 



At once suit for malicious prosecu- 

 tion was instituted against the hot- 

 headed consignor, resulting in a ver- 

 dict against him of $1,000. The case 

 is now in the Appeal Court, but I 

 have no idea that it will be reversed. 

 The first thing to ask yourself 

 when any employee or agent who has 

 collected your money refuses or fails 

 to turn it over is, why does he re- 

 fuse? If it is because he claims the 

 right to hold it, no matter how flimsy 

 the claim is — if sincere — then it is 

 putting your head into the lion's 

 mouth to issue a warrant. Of course 

 thieves and embezzlers often justify 

 holding out of other people's mon(>y 

 by a claim of right. The claim of 

 right must have both a legal and 

 moral foundation. For instance, sup- 

 pose an employee is suddenly dis- 

 charged. He claims the house owes 

 him money. The house denies it. 

 The employee goes to the safe or the 

 cash register and abstracts enough to 

 cover his claim. That is larceny, 

 even though his claim v.cs u. good 

 one. No man can pay himself in any 

 such fashion. But the position of an 

 employee who had collected money 

 for his employer, with the latter'.s 

 consent, and still held it, would be 

 different. He would not be guilty of 

 larceny if he refused to hand it over 

 on the plea that his employer was in- 

 debted to him. Even if his plea was 

 groundless, it would not be safe to 

 arrest him, unless the employer had 

 full proof in his possession that the 

 plea was merely a subterfuge to ex- 

 cuse the larceny. In that case, it 

 would be reasonably safe to issue a 

 warrant. 



(Copyright, June. I'JIS. 

 Elton J. Buckley.) 



by 



IN EL PASO, TEXAS. 



.loseph P. Madden of Medford. who 

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"I like it fine. It's a great life and 

 one enjoys soldiering in a place like 

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 a little hot the boys are all getting 

 used to it. The earth here is baked 

 dry and not a bit of vecetation can 

 grow anywhere. In the suburban part 

 of the city there are some small 

 flower gardens that are a delight to 

 the eye. Almost every house has its 

 own lawn and what a difference some 

 water will do to the ground. The grass 

 is thick and spongy. You don't see the 

 like in or around Boston. The grass 

 there seems coarse as compared to 

 the gtase here, and, people owning 

 small farms near our camp tell me 

 that when they get the water for irri- 

 gation purposes from the Elephant 

 Butte dam some fifty miles up the 

 river Rio Grande, thousands of acres 

 will be reclaimed." 



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