A person is none the less an agent because another person is also an agent with him in respect to the same money or property.71 But a person employed by an agent and who is subject to the direction and control of such agent exclusively, and is responsible to him alone, is not the agent of the latter's principal.72 And it has been held that a clerk in a hotel is not the agent of a guest who gives him money and securities to be placed in the hotel safe for safe-keeping.78 § 527. Bailees. To sustain a conviction of embezzlement or larceny by a bailee, it must appear that the accused was a bailee 74 of the 71 So a member of a partnership is none the less an agent because his partner is also one. Carr v. State, 104 Ala. 43, 16 So. 155. 72 Peters v. State, 12 Ala. App. 133, 67 So. 723; Tipton v. State, 53 Fla. 69, 43 So. 684; Stone v. Com., 104 Ky. 220, 46 S. W. 721, 84 Am. St. Rep. 452. 73 Chanock v. United States, 267 Fed. 612. 74 State v. Lyons, 3 Boyce (26 Del.) 72, 80 Atl. 976; State v. Seeney, 5 Pennew. (Del.) 142, 59 Atl. 48; State v. McCutchan, 104 Neb. 80, 175 N. W. 660; People v. Mitchell, 49 N. Y. App. Div. 531, 63 N. Y. Supp. 522, aff'd 168 N. Y. 604, 61 N. E. 182. Where diamonds were sent to a dealer for his examination and selection title to remain in the owner until the dealer made his selection and notified the owner and received a bill of sale, it was held that the transaction was a bailment. State v. Betz, 207 Mo. 589, 106 S. W. 64. A contract under which defendant was to sell motor cars for a company, he to pay the company an agreed sum for each car sold and to retain the balance, was held to constitute a bailment with power of sale and not a conditional sale, so that he was guilty of embezzlement where he appropriated a car received under the contract to his own use. Botkin v. State, 16 Okla. Cr. 610, 185 Pac. 835. An agreement whereby the defendant who had given bond to a bank to procure the payment of a lost certificate of deposit belonging to a third person was to hold the amount so paid as security until the bond was released, and then return it to the owner, was held to constitute a contract of bailment by pledge, and to make the defendant a pledgee and trustee within the meaning.of the statute. State V. Jakubowski, 77 Wash. 78, 137 Pac. 448. Where there has been a partial division of a crop between a landlord and a cropper, and the landlord puts the cropper into possession of the landlord's part for purpose of disposing of it for the landlord's benefit, the cropper becomes a bailee of such part, and commits larceny after trust if he converts it to his own use. Smith v. State, 7 Ga. App. 468, 67 S. E. 202. Where the owner of goods let the defendant have them to sell on commission, he to deduct his commission from the amount received for those sold and give the owner the balance, and return those not sold, it was held that the transaction was a bailment and not a sale. Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313. Delivery of accepted orders on a pipe line company for oil in its pipes is a sufficient delivery of the oil to property taken, and a bailee of the character specified in the statute.75 To constitute a bailment the property must have come into the possession of the accused by virtue of a contract, express or implied.76 And therefore a person who converts money paid him by mistake cannot be convicted under a statute punishing theft by bailees." But there may be a bailment without an express contract, as where the owner of property intrusts it to another under such circumstances that the law imposes upon the person to whom it is delivered the duty or obligation to return or account for it.78 And hence the fact that a contract of bailment is void is no defense to a charge of embezzlement against the bailee for converting money or property received under it.79 constitute a bailment, especially after the oil has been actually received by the bailee. Hutchison v. Com., 82 Pa. St. 472. A bailee of a bailee should be charged as the bailee of the latter, and not as the bailee of the original bailor. Peters v. State, 12 Ala. App. 133, 67 So. 723. There can be no embezzlement where the relationship is that of debtor and creditor. See § 533 et seq., infra. 75 Some courts have held that the words or other bailee," following an enumeration of particular kinds of bailees in such a statute, are not confined to bailees of the generic class of those specially enumerated, but include bailees generally. Tally v. State, 105 Ark. 28, 150 S. W. 110; Compton v. State, 102 Ark. 213, 143 S. W. 897; Wallis v. State, 54 Ark. 611, 16 S. W. 821; Belt v. State, 103 Ga. 12, 29 S. E. 451; Cody v. State, 100 Ga. 105, 28 S. E. 106; Rice v. State, 6 Ga. App. 160, 64 S. E. 575; State v. Chaplain, 101 Kan. 413, 166 Pac. 238; Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930. But others have held to the contrary, applying the rule "ejusdem generis."' State v. Grisham, 90 Mo. 163, 2 S. W. 223. The words "any trustee or factor, carrier or bailee," were held to refer to trustees, factors, carriers, or bailees of corporations as well as of natural persons. State v. Journey, 105 Miss. 516, 62 So. 354. 76 People v. Mitchell, 49 N. Y. App. Div. 531, 63 N. Y. Supp. 522, aff'd 168 N. Y. 604, 61 N. E. 182; Campos v. State, 84 Tex. Cr. 216, 207 S. W. 931; Fulcher v. State, 32 Tex. Cr. 621, 25 S. W. 625; Burns v. State, 145 Wis. 373, 128 N. W. 987, 140 Am. St. Rep. 1081. 77 Campos v. State, 84 Tex. Cr. 216, 207 S. W. 931; Fulcher v. State, 32 Tex. Cr. 621, 25 S. W. 625. 78 State v. Sienkiewiez, 4 Pennew. (Del.) 59, 55 Atl. 346; Burns v. State, 145 Wis. 373, 128 N. W. 987, 140 Am. St. Rep. 1081; Reg. v. McDonald, L. R. 15 Q. B. D. 323. A constable who in good faith takes possession of money thrown away by an insane man whom he has arrested, is a bailee within the meaning of the statute. Burns v. State, 145 Wis. 373, 128 N. W. 987, 140 Am. St. Rep. 1081. 79 So it is no defense that the contract of bailment was void because made on Sunday. wiez, 4 Pennew. State v. Sienkie(Del.) 59, 55 Atl. There is considerable conflict of authority as to what classes of persons are included in the term "bailees" as used in the various embezzlement statutes, due in part, at least, to the varying phraseology of the statutes themselves. A bailment has been defined to be a delivery of personal property by one person to another to be held according to the purpose or object of the delivery, and to be returned. or delivered over when that purpose is accomplished.80 And in its broad sense, the word "bailee" may be construed to include every person to whom the possession of personal property is delivered by another.81 But many of the courts give it a narrower meaning when used in statutes of this character and hold that it includes only those cases where there is a trust or fiduciary relation between the parties.82 In Texas conversion by a bailee constitutes embezzlement if a trust or fiduciary relation exists between the parties, but if no such relation exists the offense is conversion or theft by bailee.8 546. Or that the bailee was an infant and hence incapable of making the contract. Reg. v. McDonald, L. R. 15 Q. B. D. 323. 80 State v. Lyons, 3 Boyce (26 Del.) 72, 80 Atl. 976; State v. Brewington, 2 Boyce (25 Del.) 71, 78 Atl. 402; State v. Seeney, 5 Pennew. (Del.) 142, 59 Atl. 48. 81 Rice v. State, 6 Ga. App. 160, 64 S. E. 575. 82 Cunnegin v. State, 118 Ga. 125, 44 S. E. 846; Finkelstein v. State, 105 Ga. 617, 31 S. E. 589; Rice v. State, 6 Ga. App. 160, 64 S. E. 575, and other cases cited in the following notes. As to the necessity for a trust relation generally, see § 531, infra. 83 Landis v. State, 85 Tex. Cr. 381, 214 S. W. 827; Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313; Johnson v. State, 71 Tex. Cr. 206, 159 S. W. 849. But the fact that such a conversion may constitute theft by bailee does not prevent it from also being embezzlement. Landis v. State, 85 Tex. Cr. 381, 214 S. W. 827; Wilson v. State, 47 Tex. Cr. 159, 82 S. W. 651. Where the owner of goods places them in the possession of the defend 83 ant to sell at a fixed price and to return those not sold, if the defendant converts the goods his offense is theft by bailee, but if he sells them and converts the money it is embezzlement. Moore v. State, 88 Tex. Cr. 154, 225 S. W. 261. Where the owner of goods let the defendant have them to sell on commission, he to deduct his commission from the amount received for those sold and give the owner the balance, and to return those not sold, and he failed to return the goods or the money, his offense was held to be larceny by bailee and not embezzlement, since there was no fiduciary relation and the bailment was not for the exclusive use of the bailor. Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313. The statute governing theft by bailee provides that "any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use with the intent to deprive the owner of the value of the same, shall be Some courts have held that statutes of this character apply to such bailees only as stand in a fiduciary relation to the bailor, and who receive the property exclusively for the bailor's benefit, and not where the property is held for the benefit of the bailee, as for hire,84 or for the benefit of both parties,85 as where property is intrusted to another to be sold on commission.86 It has also been held that the property must have been delegated to the defendant under some trust or purpose in which the person delivering the article, or some person other than the defendant himself, has an interest or benefit.87 Other statutes have been held to apply to a person who hires property and expressly agrees to return it at a specified time,88 or to a person whom the owner permits to use property temporarily for his own benefit,89 or for the benefit of both parties.90 Some statutes have guilty of theft." Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313; Landis v. State, 85 Tex. Cr. 381, 214 S. W. 827. This provision covers every character of bailment except one for the exclusive use of the bailor. Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313. 84 Watson v. State, 70 Ala. 13, 45 Am. Rep. 70; Johnson v. State, 71 Tex. Cr. 206, 159 S. W. 849. As to Alabama, probably this would not be true under the present statute, which punishes any bailee who converts any money or property "which may have come into his possession by virtue of any bailment for any purpose." See Peters v. State, 12 Ala. App. 133, 67 So. 723. In Texas, under this rule, it is not embezzlement where a person hires a horse from the owner and sells it. Reed v. State, 16 Tex. App. 586. But it is embezzlement where the keeper of a boarding house converts to his own use money deposited with him by a guest for safe-keeping. Johnson v. State, 71 Tex. Cr. 206, 159 S. W. 849. Or where the manager of a store appropriates money received from the sale of goods. Landis v. State, 85 Tex. Cr. 381, 214 S. W. 827. Or where a servant appropriates a horse intrusted to him by the master to ride while going on an errand. Wilson v. State, 47 Tex. Cr. 159, 82 S. W. 651. Under the Texas statute if no trust or fiduciary relation exists, the offense is larceny by bailee and not embezzlement. Johnson v. State, 71 Tex. Cr. 206, 159 S. W. 849. And see note 83, supra. 85 Lang v. State, 97 Ala. 41, 12 So. 183. But see Peters v. State, 12 Ala. App. 133, 67 So. 723, and the preceding note. 86 Moore v. State, 88 Tex. Cr. 154, 225 S. W. 261; Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313. 87 The mere delivery of property to the defendant as a temporary loan, without hire and for the benefit of the defendant only, does not create such a bailment as is contemplated by the statute punishing larceny after trust. Rice v. State, 6 Ga. App. 160, 64 S. E. 575. 88 As a person who hires a horse and buggy and expressly agrees to return the same to the owner at the end of the period of hire. Tally v. State, 105 Ark. 28, 150 S. W. 110. 89 State v. Seeney, 5 Pennew. (Del.) 142, 59 Atl. 48. 90 As where the lessor of a farm delivers a cow to the lessee to be 95 or been held to apply only in the case of bailments in which the specific property is to be returned to the bailor,91 thus excluding a person to whom goods are delivered upon a sale on condition that the title shall pass upon payment of the price.92 Some of them have been held to apply to a person who converts money delivered to him by another to buy goods 93 or to change or get changed,94 or to a person to whom property is delivered to be sold, and who converts the property the proceeds of its sale,96 or to the secretary of a school board to whom a blank warrant is delivered for the specific purpose of paying a claim against the district, and who fills it in for an excessive amount and appropriates the difference.97 And it has been held that the word bailment, as used in a statute punishing larceny by bailees, includes any delivery of a thing in trust for some specific object or purpose and upon a contract express or implied to conform to the object or purpose of the trust.98 kept on the farm for the purpose of producing manure. State v. Lyons, 3 Boyce (26 Del.) 72, 80 Atl. 976. 91 The term bailee as used in the statute includes "simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods bona fide, and then fraudulently convert." There must be a fiduciary duty to return the specific money or goods which constitute the subject of the bailment. Krause v. Com., 93 Pa. St. 418, 39 Am. Rep. 762; Compton v. State, 102 Ark. 213, 143 S. W. 897; Settles v. State, 92 Ark. 202, 122 S. W. 500; Dotson v. State, 51 Ark. 119, 10 S. W. 18. A bailment relates to something in the hands of the bailee which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under an obligation to return it in precisely the identical coins which he originally received, as where he is authorized to invest or loan or deposit it. Reg. v. Hassall, 8 Cox C. C. 491, Leigh & C. 58; Reg. v. Garrett, 8 Cox C. C. 368. 92 Settles v. State, 92 Ark. 202, 122 S. W. 500; Krause v. Com., 93 Pa. St. 418, 39 Am. Rep. 762. 93 Reg. v. Aden, 12 Cox C. C. 512. 94 Eggleston v. State, 129 Ala. 80, 30 So. 582, 87 Am. St. Rep. 17; State v. Brewington, 2 Boyce (25 Del.) 71, 78 Atl. 402. 95 People v. McLean, 135 Cal. 306, 67 Pac. 770; Reg. v. Richmond, 12 Cox C. C. 495. 96 As where a horse is delivered to the defendant to be sold for the owner and he appropriates the proceeds of the sale, if it was expressly or impliedly understood that he should deliver the identical proceeds of the sale to the owner. Dotson v. State, 51 Ark. 119, 10 S. W. 18. 97 Compton v. State, 102 Ark. 213, 143 S. W. 897. 98 Delivery of a certificate of deposit to a person for the sole purpose of having the latter renew it for the benefit of the owner is a bailment. Tashima v. People, 58 Colo. 98, 144 Pac. 200. |