Reed v. Fidelity & Casualty Co.
Reed v. Fidelity & Casualty Co.
Opinion of the Court
We have repeatedly said that an appeal does not lie from the entry of a compulsory nonsuit, but only from the refusal of the court in banc to take it off. The first specification of error is therefore useless.
The second and third specifications are substantially the same, and present the only question in the case, whether the court erred in refusing to take off the nonsuit entered by the learned trial judge.
A careful consideration of the testimony on which the plaintiffs rely has satisfied us that it is insufficient to justify submission of the case to a jury. The reasons for this conclusion are sufficiently stated by the learned trial judge in his opinion delivered “upon entering the nonsuit,” and need not be repeated here.
Judgment affirmed.
Reference
- Full Case Name
- Alan H. Reed and George K. Reed, formerly trading as Jacob Reed's Sons v. The Fidelity and Casualty Company of New York
- Cited By
- 9 cases
- Status
- Published
- Syllabus
- Practice, Supreme Court—Assignments of error—Nonsuit—Appeals. An appeal does not lie from the entry of a compulsory nonsuit, but only from the refusal of the court in banc to take it off. Principal and surety—Master and servant—Larceny—Embezzlement. In an action upon a bond securing an employer against loss by reason of the fraudulent or dishonest acts of an employee amounting to embezzlement or larceny, a nonsuit is properly entered where there is no evidence to show that the employee personally received goods shipped to him, or that they had been in his actual control, or that he had ever received the proceeds of the sale of them. A tailoring firm sent clothes to an agent in a distant city under an agreement that, if they were not accepted by the persons ordering them, he should return them within thirty days after they were sent to him, and if they were accepted he was to collect the money and remit. He never accounted for them. It was not shown that he ever received any of them or any money for them. In an action by the firm on a bond securing them against any pecuniary loss from the fraudulent or dishonest act of the agent “ amounting to embezzlement or larceny,” it was held that plaintiffs could not recover.