(dissenting):
I think the court erred in refusing to charge that if the jury ¡ should find from the evidence the misappropriation of defendant’s property received under the employment, he could not recover.
The plaintiff was a farm servant. He was intrusted with the' sales of the produce, and it was a part of. his employment. The servant contracts as well for honesty and fidelity as for the personal service. The proof is very strong that the plaintiff did lack fidelity. The amount proven is not large, but it warrants a belief in a larger sum. It is-true that the plaintiff worked out the term, but that fact has no materiality in view of the fact that the defendant knew nothing of the servant’s unfaithfulness.
If he retained the servant after knowledge, it is well settled that the objection, even if a sufficient one upon which to discharge the servant, it becomes waived.
The master cannot set it up, because to receive service knowing that it was dishonestly rendered, and without an intention to pay for it, is also bad in principle and morals. If this was claimed and there was any evidence upon which to support a request, the right of the plaintiff could have been preserved by directing the jury to find a waiver if the evidence warranted it, and in such case to find for the plaintiff, although there was a lack of fidelity.
*236I cannot agree to the principle that a servant may continue peculations from his master during his whole term, and then only be compelled to pay bach such small amount as it may be in the power of the master to prove.
The judgment should be reversed and a new trial granted, costs to abide the event.
Judgment and order denying new trial affirmed, with costs.