dissenting. The case is one wherein the law, through judicial delineation, takes from those who have received substantially nothing as a consequence of this controversy and gives in plenty to the plaintiff. The award goes to one whose presumptive insolvency and mysterious disappearance would have prompted any man of reason to proceed as the defendants did.
The simple story that so clearly gives emphasis to a penal course of action may be briefly stated in this way: A rural merchant whose commercial obligations were slightly in excess of nine thousand dollars — takes $3,600 from the assets and silently fades away. Highly reputable wholesalers to whom the merchant was indebted conferred with the Lost Man’s wife and daughter. The clear motive of these creditors was to prevent the closing of this strange customer’s place of business; so Terry’s wife and daughter were put in charge. Perhaps “put” is not a comprehensive word. The two were Terry’s closest kin — the ones to whom in any circumstance he would have turned for aid. They, and they alone, continued physical operation of the store. It is said that a jury inferentially found otherwise. The accounts about which so much is said were in their hands. The opinion incorrectly leaves the impression that appellants took the books. How much money these two collected no living man can say. The token payments made for creditor benefits stand as monumental evidence of inefficiency of wife and daughter or failure to account. The business men who are now made to pay almost five thousand dollars for misdirected sympathy received the princely sum of $338 for the benefit of creditors. It is inconceivable that twelve jurors, or even nine of them, should have fixed a liability so completely lacking in all of the elements of justice. I would reverse the judgment and dismiss the cause for want of substantial evidence of conversion.