
    No. 154
    NIMBERGER v. STATE
    Ohio Court of Appeals, Cuyahoga County
    No. 4408,
    Jan. 22, 1923
    EMBEZZLEMENT — (1) By persons occupying fiduciary relation — (2) Distinction between employes and factors under del credere commission.
    Error to Common Pleas Court
    Attorneys — L. S. Mills, for Nimberger; E. C. Stanton, for State._
   EPITOMIZED OPINION

LEVINE, J.:

Nimberger, by an agreement with the Parisian Candy Co., sold goods for the Candy Co., Nimberger paying his own expenses, collecting payment for goods sold and turning over the amount collected to the Candy Co. The settlement was made at intervals of several weeks, Nimberger receiving 8% commission. Nimberger also guaranteed payment by the persons to whom he sold, to the extent of 50% of the amount of the sale. Upon Nimberger’s failure to turn over to the Candy Co. certain sums due it, Nimberger was indicted for embezzlement. The question arises as to whether Nimberger was a debtor of the Candy Co. or an employe occupying a fiduciary relation to it. Held:

1. Embezzlement is a crime which can be committed only where one person occupies a fiduciary relation to another, and it does not apply to relationships where one person is obligated to pay another as principal debtor. Factors under a del credere commission are liable as principal debtors and not collaterally.

2. One who works for an employer for a salary or wage is an employe. A factor who in consideration of an additional commission guarantees paymeni to the principal of debts becoming due through his agency, acts under a del credere commission.  