President of Dedham Bank v. Chickering, 4 Pick. 314, 340 (acting as a broker for directors not within condition of bond dealing with duties of a cashier). Coyle v. United States Fid. Guar. Co. 217 Mass. 268 (misappropriation of funds from employee's own business which were assigned to employer not within condition of fidelity bond dealing with employee's duties as agent or collector for employer). Order for judgment reversed.Judgment for defendant.
It was neither larceny nor embezzlement and was not so considered or treated by the trust company or its officers. Coyle v. U.S. Fidelity Guaranty Co., 217 Mass. 268; Gray v. Davis, 89 Mo. App. 450; Milwaukee Theater Co. v. F. C. Co., 60 N.W. (Wis.) 360; Fire Ins. Co. v. Nelson, 157 S.W. (Tenn.) 416; Brown Grocery Co. v. Wasson, 68 S.W. (Ky.) 404; Blair v. Ins. Co., 10 Mo. 355; Ins. Co. v. Johnson, 120 Ill. 622; Insurance Co. v. Lowenberg, 120 N.Y. 44. (5) Failure to give notice of Peltzer's defalcations within the time required by the bond precludes recovery. No notice of any act of Peltzer or of any act for which recovery is sought, was given to appellant until after Peltzer's death and after more than sixteen days after full knowledge thereof by the respondent and its officers.
In the subsequent case of Commonwealth v. Smith, 129 Mass. 104, (where Commonwealth v. Stearns and Commonwealth v. Libbey were relied upon in defence,) the defendant was a collecting agent for one employer. It was held that the jury were warranted in finding that he had no right to substitute his obligation for his employer's money. There is a similar decision in Coyle v. United States Fidelity Guaranty Co. 217 Mass. 268. In the case at bar the jury were warranted in finding that the defendant at the times here in question was not employed by any one except the seven heirs.