Milwaukee Theater Co. v. Fidelity & Casualty Co.

The defendant corporation did not contract to pay any mere debts which Obermamn might owe to the theater company, but only to reimburse it for pecuniary loss resulting from embezzlement or lareeny. The question, therefore, is whether the evidence shows that Obermann has been guilty of embezzlement of the $6,000. So far as necessary to define embezzlement for the purposes of this case, it may be defined as the fraudulent conversion of the money or personal property of another, which is in the possession of a trustee, servant, agent, or bailee in a trust capacity. There Can be no embezzlement unless the property charged to have *415been embezzled was, at tbe time of -tbe conversion, beld in trust. A mere debtor does not embezzle tbe money of bis creditor by failing to pay tbe debt when due. Did Ober-mann bold tbe money in question in a trust capacity, or was be simply tbe debtor of the plaintiff to that amount? The-trial court evidently thought that be bad become a mere-debtor, and with that conclusion we agree. Interest is compensation for tbe use of money. When the theater company resolved that Obermann should pay them interest on moneys in bis bands, and charged him with such interest, and Ober-mann assented, tbe necessary implication resulting from tbe arrangement was that be was to have tbe use of the money. He was to pay for tbe use of it. "Why should be not have what be paid for? We could not sustain a conviction for embezzlement on these facts, nor have we been referred to any case where such a conviction on similar facts has been sustained. There, are, however, authorities sustaining, in principle, tbe view which we have taken. Kribs v. People, 82 Ill. 425; Miller v. State, 16 Neb. 179.

By the Gowrt.— Judgment affirmed.