However, an examination of the broad terms of Insuring Agreement No. 2 and a review of the limited cases upon this question indicate that the contractual relationship of the policy set out in the policy involved indicate that the coverage contemplated in Insuring Agreement No. 2 covers "wrongful abstractions" perpetrated by Temple and associates against the insured, Georgia Casualty and Surety Company. In National Surety Company v. First State Bank, Tex.Civ.App., 244 S.W. 217, the surety company had given a fidelity bond to indemnify the bank against "such pecuniary loss as it might sustain of money or other valuable securities embezzled, wrongfully abstracted, or willfully misapplied" by its cashier. At page 221 of its opinion, the Court of Appeals held:

"Recovery on the bond of one officer does not prevent recovery on the bond of another for the same default." 50. C.J., 86, § 136, citing National Surety Co. v. Bank (Tex.Civ.App.), 244 S.W. 217. We need not anticipate the conditions of the ultimate adjustment as between Hall and the Paramount company on the $7,500 loss, charged to Hall. Under the terms of the bond the surety agrees to make good any loss which the W. G. Hall Garage may suffer by reason of "any act of larceny or embezzlement of Lawrence Hugh Jones employee * * * as bookkeeper and cashier * * * in the Employer's service."

Winbourn Pearce, Sam D. Snodgrass and Walker Saulsbury, Maurice Cheek, former assistant Atty. gen., all of Temple, for plaintiff in error. On proposition that act of bank directors was a guise to misappropriate funds for the bank and that insurance company was liable on its bond: San Antonio St. Ry. Co. v. Adams, 87 Tex. 125, 26 S.W. 1040; Maresh v. Jennings, 38 S.W.2d 406; National Surety Co. v. First State Bank of Tom Ball, 244 S.W. 217; 14a C. J., 92, 101, 377. Houston Johnson, of Dallas, for defendant in error.

Ala. F. C. Co. v. Ala. P. S. Bank, supra. An employee is guilty of fraud and connivance, regardless of a personal benefit to him, if the acts constituting a fraud are of benefit to others. 5 Couch, Cyc. Ins. Law, 4353, 4362, 4384, § 1199K; Nat. Sur. Co. v. First St. Bank (Tex.Civ.App.) 244 S.W. 217; U.S. F. G. Co. v. Bank (C.C.A.) 46 F.(2d) 950; Citizens' T. G. Co. v. Globe Rutgers (C.C.A.) 229 F. 326, Ann. Cas. 1917C, 416; U.S. F. G. Co. v. Egg Shippers' Co. (C.C.A.) 148 F. 353; Md. Cas. Co. v. First Nat. Bank (C.C.A.) 246 F. 892; Rankin v. U.S. F. G. Co., 86 Ohio St. 267, 99 N.E. 314; Brandon v. Holman (C. C. A.) 41 F.(2d) 586; State v. Gesell, 124 Mo. 531. 27 S.W. 1101; Richardson v. Richardson (Sup.) 114 N.Y. S. 912, 916; Marshall v. F. M. Bank, 85 Va. 676, 8 S.E. 586, 2 L.R.A. 534, 17 Am. St. Rep. 84. Where the defense set up depends upon the proof of a negative fact, the burden of proof is on the party alleging the negative fact. W. U. T. Co. v. Brazier, 10 Ala. App. 313, 65 So. 95; L. N. R. Co. v. Cowherd, 120 Ala. 57, 23 So. 793; Buckner v. Graves, 210 Ala. 294, 98 So. 22; Freeman v. Blount, 172 Ala. 655, 55 So. 293. KNIGHT, Justice.

Wright v. Bundy (1858), 11 Ind. 398, 407; Daggett v. Bonewitz (1886), 107 Ind. 276, 7 N.E. 900; Belford v. Scribner (1892), 144 U.S. 488, 36 L.Ed. 514, 12 S.Ct. 734; People v. Reese (1932), 258 N.Y. 89, 179 N.E. 305, 79 A.L.R. 1329; United States v. McCoy (1904), 193 U.S. 593, 48 L.Ed. 805, 21 S.Ct. 528. In the case of National Surety Co. v. State, ex rel. (1922), 192 Ind. 412, 416, 136 N.E. 569, an attempt was made to introduce into evidence a certified and authenticated copy of a reinsurance contract obtained from the insurance department of the state of New York. In discussing the admissibility thereof the Supreme Court said:

In this state it is well established that one who falsifies a bank's books in order to conceal abstractions of funds which he knows that some one else is making is himself guilty of willful misapplication of such funds within the meaning of the bond sued upon in this case. National Surety Company v. First State Bank (Tex.Civ.App. 1922) 244 S.W. 217 (writ of error refused); Chapman, Commissioner v. Nieman (Tex.Civ.App. 1925) 276 S.W. 302; second appeal Austin v. Nieman (Tex.Civ.App.) 3 S.W.2d 128; Id. (Tex.Com.App.) 14 S.W.2d 794; American Surety Company v. Austin (Tex.Civ.App. 1928) 5 S.W.2d 626 (writ of error refused): Maryland Casualty Company v. Farmers' State Bank (Tex.Civ.App. 1924) 258 S.W. 584; Ferguson v. State (1916) 80 Tex.Cr.R. 383, 189 S.W. 271. There is no question that funds were abstracted by some one; and that Cone made the false entries which concealed, and thus aided in the perpetuation of, the abstractions. And, although Cone denies that he knew that the officers who intercepted the deposits at the window were using that money for their own benefit, he knew, or should have known, that the bank was not getting the benefit of it. If the bank got the money, or the benefit of the money, it would have to show up in some account, as cash or as a loan or discount, or bill receivable, or otherwise as an asset of the b

And in such proceeding, allegations of a petition charging that a bank employee embezzled, abstracted, or misapplied such funds have been sustained. National Surety Co. v. Bank (Tex.Civ.App.) 244 S.W. 217. The condition of the bond involved here (executed in accordance with the provisions of article 498, R.S. 1925), was to protect the bank against loss from the dishonesty of the employee, whether it occurred through one or through all of the methods named in the statute. And where, as here, the evidence showed numerous defalcations made by the cashier, with resulting losses to the bank, each of which the evidence showed was either an embezzlement by him, or a willful misapplication of funds, though some of them may have been one and some the other, the trial court's findings in the alternative are sufficient to fix appellant's liability under its bond. Its liability attached in either event, and, where the uncontradicted evidence shows that the casher mulcted the bank through one method or the other, the reason for a separate finding as to what offense each default constituted ceases, and the error, if any, was harmless.

In our opinion it shows that Harris was the confederate and tool of Hudson, and, in the light of all the facts and circumstances reflected by the record, the evidence is sufficient to show that Harris was a party to such willful misapplication of funds of the bank as to render appellant liable upon his bond. Chapman v. Nieman (Tex.Civ.App.) 276 S.W. 302; National Surety Co. v. Bank (Tex.Civ.App.) 244 S.W. 217. It seems to us the ruling upon the plea in abatement and the sufficiency of the evidence are the only substantial questions presented by this appeal. Appellant has presented numerous other assignments and propositions directed against practically every feature of the record.

It is sufficient if his actions have intentionally resulted in the abstraction or misapplication of the funds or securities of the bank or affirmatively contributed thereto and another with his knowledge and consent has profited thereby. National Surety Co. v. First State Bank (Tex.Civ.App.) 244 S.W. 217; Chapman, etc., v. Nieman (Tex.Civ.App.) 276 S.W. 302. The evidence is undisputed that S.E. Lowe, the cashier and managing officer of said bank, from time to time abstracted, misapplied, and appropriated to his own use a large sum of money belonging to said bank.

This is a second appeal, judgment for relator having been heretofore reversed on appeal to the Supreme Court. See National Surety Co. v. State, ex rel. (1922), 192 Ind. 412, 136 N.E. 569. Numerous questions are presented and discussed, but, as we view this case, the questions presented by the court's conclusions of law based on finding of facts are decisive of this appeal. These facts, so far as here involved, and after setting out the proceedings establishing said highways, are: That, pursuant to further proceedings had in said matter, the board of commissioners, on May 6, 1908, entered into a written contract with Charles F. Fitch and Company, of Louisville, Kentucky, for the building and construction of certain highways designated and named in said petition, one of which said highways is designated as the "Henryville Road" and another of said highways is designated as the "Lexington Road," in which said contract it was provided that, as the work progressed, the board would pay the contractors monthly upon the report of the engineer and his estimate thereof, according to the plans and specifications, provided, however, that 20 per cent of the contract price should