The errors complained of in the court’s charge to the jury were waived by failing to assign them as grounds for a new trial in the motion filed for that, purpose.
The only question presented by the record is, is the evidence sufficient to sustain the verdict ? The suit was instituted by Smith against the company upon an account for services rendered. The correctness of this account, was admitted by the company, the contest arising over a counter-claim presented by the company against the plaintiff. The facts as to that are as follows: The plaintiff had been the company’s station agent at Camden in this state. It was his duty to make a daily report of his business to the company, and with it to remit the day’s collection of money made in the company’s business. At the end of about a year’s service it was discovered that a large amount of the company’s money collected at his station had not been accounted for ; he was discharged and the company refused to pay the salary and commissions due him. It was for this he sued. He did not deny that the money claimed by the company had been collected and not accounted for, but undertook to prove that the missing funds had been appropriated by the company’s telegraph operator and clerk in the same office, who, it appears, was his assistant. There was a conflict of testimony as to whether the clerk or the plaintiff appropriated the missing funds, but for the purpose of fixing the plaintiff’s liability to account to the company, it is not material upon whom the odium of the misappropriation rests. All agree that the money was collected and not •accounted for, and there is nothing to vary or contradict the plaintiff’s statement to the effect that he had general ■charge of the office and control of the business to which he was assigned; that he had the right to collect and handle the money to the exclusion of the clerk and all ■others; that the company looked to him for the payment •of all money collected in his department at Camden ; furnished him with a combination lock safe for its safe keeping, and required a bond of him alone, for the faithful ■discharge of that duty. It was the plaintiff’s custom to permit the clerk to receipt for money due the company in his (plaintiff’s) name as station agent. Now, if it were a settled fact that it was through his clerk the deficit was brought about, the maxim qui facit per alium facitper se would still leave the liabilty to account to the company ■upon the plaintiff. Having assumed the responsibility to the company for the payment of all money collected through his office, he could not after a loss, shield himself from liability by proving that one who acted with his assent in making collections had appropriated the money he was allowed to collect. The plaintiff seems to have fully appreciated his liability, for he testifies that he intended to make good the losses to the company as long as they appeared to be within reasonable bounds.
In the month of January previous to his discharge, the plaintiff’ was relieved from station duty for a period of three days and assigned by the company to other service, the clerk above mentioned in the meantime having sole •charge of the station by direction of the plaintiff’s superior •officer. If it were shown that any defalcation occurred in this interval, the plaintiff would to that extent be exonerated from liability, because the responsibilities, as well as the duties of the office, had for that time been devolved by the company itself upon the plaintiff’s agent.
But there was no attempt to locate any mismanagement in the office in that interval. The plaintiff himself testifies that the first shortage in the accounts of the office discovered was on the 7th of the following June in the account for that month. But the balance sheet for each day showed for itself what had been or ought to have been collected, and any error could have been easily detected.
The case was tried upon an erroneous theory of the principal’s liability or non-liability for his agent’s acts; the verdict is without evidence to sustain it, and the judgment must be reversed and the cause remanded for a new trial.