dissenting:
The obligation of the surety bond sued on in this case extends no further than “to reimburse the employer” (the defendant in error) “ * * for all pecuniary loss” (not exceeding three thousand dollars) “sustained by the employer of money, securities or other personal property in the possession of the employee,” (E. A. Leitch), “or for the possession of which he is responsible, by any act or acts of fraud or dishonesty committed by the employee in the performance of the duties of the office or position” (of secretary-treasurer) “in the service of said employer * * occurring during the continuance of this bond * *”
The bond continued for one year only, from May 1, 1917* to May 1, 1918.
There is no direct evidence in the case to the effect that the liability established by the verdict and judgment under review, or any part of it, was a loss sustained by the said employer “by any act or acts of fraud or dishonesty committed by the employee” aforesaid; and, in my view of the evidence, there is none in the case which is not equally consistent with the inference that no fraud or dishonesty of said employee occasioned such loss or any part of it, as with any contrary inference.
*322As to portions of said liability, namely, the $45.00 balance owing by said employee for the stock of the club issued to him in 1916, and the $645.00 charge to the account of bills receivable, entered on the books after May 1, 1917, I think that the evidence both for the defendant in error and for the plaintiff in error concurs in showing affirmatively that such portions of such liability were occasioned by acts of said employee which did not occur “during the continuance of (said) bond,” but prior thereto, namely, in 1916. As to the item of $645.00, the case for the defendant in error rests upon the assumption that the loss to such defendant occurred when the entry of this sum was made on the books. There is no other evidence in the case to sustain the position that this loss occurred during the continuance of the bond. This seems to me to be an untenable assumption. The book entry in question was made of past transactions. As I view the matter, the loss involved occurred when such transactions actually occurred, not when the entry of them was made on the books. As to the item of $45.00, I think there is no evidence in the case tending to show that there was anything more than the personal indebtedness of said employee for the balance owing by him on the stock of the club issued to him, not by himself alone, but by another and proper officer of the club, the stock being merely countersigned by the former as in the case of other issues of stock. The failure of the said employee to produce the note has not, so far as appears from the evidence, occasioned any loss to the defendant in error of the $45.00 balance owing upon it; and if it did, in so far as the note is concerned, the loss was the actual value of the nóte (which is not shown in evidence), not the balance owing thereon.
I think, therefore, that there was not sufficient evidence of that convincing character which is requisite to prove fraud or dishonesty to support the verdict of the jury against the plaintiff in error, and hence, for this reason, I am compelled to dissent from the majority opinion.