(dissenting). Upon the first two causes of action, questions of fact were presented to the jury. It was not shown that Groh had actually received the moneys, all that appeared being that he had directed such moneys to be charged up in the cash account as for expenses; and the jury were thus free to infer that the entries were correct, or that the moneys, if wrongfully drawn, were not so drawn by John Groh. Their conclusion, therefore, should not be disturbed, in finding no cause of action against the defendant as to these *447sums. As to the third cause of action, however, I think there should be a reversal, and therefore dissent.
It appears that the money was withdrawn by check after Flarbmer had purchased his stock and bonds, and became entitled to a majority interest in the corporation, and after he was actually installed as treasurer, for his signature as treasurer was duly affixed to the checks in question. The claim made by the defendant is that such moneys were due to John Groh and to his mother, who prior to April 17, 1897, were the sole owners of the corporation which had been formed December 30, 1896; and it was sought to be inferred that such moneys were withdrawn for the purpose of paying the son and mother a dividend for the period between January 1 and April 17, 1897, and it was shown that, upon receipt of the checks, John Grob paid over to his mother a part of the moneys obtained. The entry made at the time such checks were given was, “To balance old firm account.” A great deal of testimony was introduced, under exception, to show what the relations between Flammer and the Groh family had been, what he received as an officer of the corporation during the ensuing year, what his friends received, what the earnings of the company were, and what percentage thereof the defendant obtained, all with a view to showing that the money received by John Groh on April 17, 1897, which he divided with his mother, was no more than a fair dividend to be declared and obtained by them for the period between January 1 and April 17, 1897. Much of this evidence was evidently incompetent and immaterial; the issue being whether or not John Groh was justified in thus receiving moneys at the time he did. There is no doubt that had such moneys been taken by him prior to April 17, 1897, and at a time when Flammer had no interest in the corporation, such withdrawal would have been entirely justified, since only he and his mother were interested in the concern. Although they may have agreed prior to April 17, 1897, to withdraw from the company such moneys, in the way of a dividend, the fact remains that they did not do so, but waited until Flammer had made his purchase of stock and bonds, and was installed as treasurer of the company, when it was necessary to obtain his signature to make the withdrawal. It was not shown that Flammer, when he bought the stock and bonds, agreed to any such payment of dividends; but, on the contrary, regarding such payment as a debt, as it must be considered, if due at all, he had expressly stipulated in his written agreement that the defendant, Julia Groh, should assume all debts outstanding. The inevitable conclusion, it seems to me, is that the moneys withdrawn by John Groh on April 17, 1897, were withdrawn without authority, and that his estate is liable to the company for their return.
I t-hink, therefore, that, as to the third cause of action, the judgment appealed from should be reversed, and, as to the first and second causes of action, it should be affirmed.