On appeal from a judgment of the Supreme Court, whose opinion is reported in 117 N.J.L. 245.
For the plaintiff in error, Merritt Lane, Carl Kisselman and George D. Rothermel.
For the defendant in error, Samuel P. Orlando, prosecutor of the Pleas.
The opinion of the court was delivered by
HEHER, J. We perceive no error in the judgment under review.
But we do not yield assent to the view that a "constructive bailment," defined in Gilson v. Pennsylvania Railroad Co.,
86 N.J.L. 446 (a case involving, it will be noted, only the civil rights of private parties), as one arising "where the person having the possession of a chattel holds it under such circumstances that the law imposes upon him the obligation to deliver it to another," is within the intendment of section 184 of the Crimes act (2 Comp. Stat. 1910, p. 1799), classifying as a misdemeanant "any consignee, factor, bailee, agent or servant, entrusted with the care or sale of any personal property, or entrusted with the collection or care of any moneys, who shall fraudulently take or convert the same, or the proceeds of the sale of the same, or any part thereof, to his own use, or to the use of any other person or persons whatsoever, except the rightful owner thereof."
In its broad signification, the term "bailment," derived from the French "bailer," meaning "to deliver," includes "any delivery of personal property in trust for a lawful purpose." 6 Am. Jur. 140. While it is a relationship that ordinarily rests in contract, express or implied in fact, there is also a class of bailments, quasi -contractual in nature, which arise by operation of law "where, otherwise than by a mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, for example, where possession has been acquired accidentally, fortuitously, through mistake, or by an agreement, since terminated for some other purpose; * * * such quasi contracts of bailment include what are known as constructive and involuntary bailments." 6 Am. Jur. 209, 210.
The question is in essence one of legislative intent. Embezzlement was not punishable as a crime at common law. It signified a mere breach of trust. Its criminality is wholly statutory in origin; and it is an established canon of interpretation in this state that a penal statute is to be strictly construed. The design of the statute under consideration was to render criminally actionable offenses which, because the taking was not accompanied by a trespass and the requisite felonious intent, were not classified as larcenies at common law.
Plainly, the basic relation contemplated by the statute is essentially fiduciary in character. It imports a true bailment, i.e., one springing from the mutual assent of the parties. To fall into the statutory class, the offender must have been "entrusted" with the care or sale of personal property, or with the collection or care of moneys.
Here, there was evidence tending to show that plaintiff in error, Carr, in relation to the moneys in question, was the bailee of the Camden Safe Deposit and Trust Company in the statutory sense. There was ample evidence to sustain a finding that, in respect of these moneys, he bore to the bank the requisite fiduciary relation, rather than that of debtor and creditor. He was the author of the scheme which resulted in the advancement by the bank of the funds necessary for the purchase of the properties at the tax sale. The bank's interest was that of ...