Cannon-Torrence Co. v. Marlott

The plaintiffs claim that Marlott, an employee of the defendant Power Company, is indebted to them, and they seek to collect their debt by attaching $55, which they allege the Power Company owes Marlott as salary for the month of August, 1912.

The Power Company denies that it owes Marlott any sum, because it says he wrongfully collected and misappropriated $95 belonging to it, and that this is more than enough to offset the claim for salary.

The plaintiffs reply that the sum of $95 paid to Marlott did not go into his hands as money of the'Power Company ;•'that it was paid to him as the agent of West, and was .the money of West, and when it was paid to Marlott it settled his claim, because received by his authority.

His Honor submitted these contentions to- the jury, but he failed to give any consideration to the evidence of the plaintiffs that the claim which West authorized Marlott to collect amounted to $63.25, and to that of the defendant that he wrongfully collected $95. •

*553If tbis evidence is true, Marlott collected $63.25 for West, and in addition wrongfully obtained '$31.75 of tbe defendant’s money, wbicb could be 'used as a set-off against ’tbe claim for salary.

Tbis view was not presented to tbe jury; on tbe contrary, the jury was instructed that if Marlott was tbe agent of West, “tbe $55 belonged to Marlott.”

In tbis instruction there is error, because if he was only authorized to collect $63.25, and be wrongfully collected $95, tbe defendant would owe Marlott $55, less the difference between tbe two amounts..

A new trial is ordered.

New trial.