St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1896-02-10

Joint receiving agent and buyer, the
defendant. Eicknof. The amount OF
the alleged shortage was the same as
In the second case and the alleged
wheat shortage had been determined
by deductfng from the gross weights
wheat on hand, the screenings and dirt
and the shipments of wheat based
upon the wheat and dockage received
at the terminal points. The amount
OF money claimed on account of the
alleged shortage was the same as in
the former suit, $665.90 and it was de-
manded because 1t came within the
terms and conditions of the bond
wherein the plaintiff, the Fidelity and
Casualty company, guaranteed the ele-
vator company against the fraudulent
acts of the defendant, Eickhoff, while
acting as receiving agent for the ele-
vator company. The plaintiff, the FL
deity and Casualty company, claimed
that under the provisions OF the bond
it was compelled to pay and make
good any loss the elevator might sus-
tain by reason OF such acts on the
part Of the defendant, Eickhoff. and
that on Nov. u, 1891, it did pay to the
said elevator company s665.90. For
this amount it held the receipt of the
said elevator company, which voucher
was, under the terms of the bond, con-
SiuSiNC ChiQSiiCS Ol Tie ITduQulGIll ACTS
Of the defendant, Eickhoff The addi-
tional claim OF $500 was again includ-
ed, and it was for investigating the
amount OF the alleged shortage and
prosecuting the claim therefor The
same amount, s., 165. 80, was demanded
The answer to this suit brought q
motion to amend, which was made on
Oct. /, 1894, and leave was granted
on Oct. Is, 1894 The contention of the
defendants attorney, STEVENSON, was
that the amended complaint would
change the action for fraud to one of
breach Of contract. The court, how
ever, granted leave, and new COM
plant making the fourth case. was
substituted. This Is a voluminous ,Ioc-
ument. and sets forth the contract in
detail, together with all the provisions
of the bond. 1t then claims the same
amount of shortage and the alleged
value thereof as was set up in the
former complaints. There is a pro-
vision in the bond which relieves the
agent and the guarantor from liability
for loss in transit, but this is mega
tived by the further provision under
which the agent agrees, to receive the
receipt of the elevator company to the
bond company as conclusive evidence
against himself He is shut off and
has no chance to deny the claims and
charges of either the elevator or the
bond company. In order, however, to
leave no possible loophole, the COM
plant alleges that the shortage
claimed was not by reason of loss in
transit, defective weights, cleaning,
insufficient dockage, shortage or any
Of the exceptions in the bond The
| history of the claim is repeated at
length, and the amount demanded is
the same, s1,165.90, the $500 being to
reimburse the Fidelity and Casualty
n( INV 70. fI1a
have been expended in investigating
the amount of the alleged shortage
In order to make it court instead
or jury case, the plaintiff sets forth
! that it involves the examination and
taking Of long account, and hence
it is an equitable action. An account
! ing is demanded to determine the
amount of wheat received, wheat on
hand, screenings and shipments based
on wheat and dockage at the termin-
| ais. Judgment is to be based upon the
! shortage that is ascertained upon this
! accounting. Judgment is also demand
ed for $1,165.90, the usual amount. It
is somewhat unusual for judgment TO
be asked in the same complaint for the
determination of the amount due on
| an open account and for a specific
amount, both demands covering the
| same claim "-i'' tiit'sV-
Mr.. STEVENSON, attorney for Eick-
hof, demurred to the complaint claim
ing 1t did not state cause of action be-
cause the bond of tine Fidelity and
Casualty company was against fraud
and dishonesty, while the acts set forth
are not such. The lower court sus-
tanned the demurrer and the plaintiff
! appealed to the supreme court The
! supreme court held that the complaint
! did state cause for action, but declared
| the provision making the voucher OF
the elevator company to the bond conf
pany conclusive evidence to be void as
against public policy because it made
them judge of their own case.
This practically means that all that
Eickhoff has to do to defend himself
is to show that he honestly shipped
out all the wheat received.