232 P. 523 | N.M. | 1924
Counsel for appellees relies upon the circumstances to create an implied agency or an estoppel of the appellant to deny the agency. He argues that appellees, knowing that Wright got all of his pianos from appellant and negotiated the sale of the same in appellant's name, were caused rightfully to believe in the agency of Wright with authority to lease the building for appellant's business. Some declarations of Wright are also relied upon. There is not one word or deed of appellant shown in evidence tending to establish Wright's agency to rent the building, and no inquiry was made of appellant by appellees into the relations between Wright and appellant. The sale of appellant's pianos was not the sole business of Wright. He ran a music store, and handled phonographs and sewing machines, as well as pianos, and lived in the building. Just why appellees failed to assert the lien against Wright's own property, but chose, rather, to rely upon appellant's property, does not appear. Under such circumstances, it is clear that appellees have no remedy against appellant. In the first place, there was no actual agency in Wright ot charge appellant's property with a landlord's lien. The authority to do so is not to be implied, as there is no showing that it was necessary to rent a store building in which to store and exhibit appellant's pianos. Nor is it shown to be customary for persons receiving pianos on consignment to rent store buildings for the owner of the same. Nor is any such course of business between these parties shown to have been previously carried on and ratified by appellant. Nor can the power result from estoppel of appellant, for it is not shown to have done any act upon which appellees, as reasonably prudent men, might rely and take a position to their detriment. Appellant did not act except to ship its pianos to Wright on consignment, under a contract to be exempted from all expenses incurred in their sale, and *288
appellees had no right to simply assume, as they did, and without inquiry of appellant, that Wright had authority to rent the store for appellant. See 1 Mechem on Agency (2d Ed.) §§ 241-246, 722; 1 Clark Skyles on Agency, §§ 55, 56; 2 C.J. "Agency," §§ 32-34, 72-74, 231; 21 R.C.L. "Principal and Agent," §§ 32-34. Specific application of some of these considerations is made in Schoenhofen Brewing Co. v. Wengler,
[2] We have examined the cases cited by counsel for appellee, and find that they were decided upon facts so different from those in this case as to render them inapplicable. Our case of Beebe v. Fouse,
It follows from the foregoing that the judgment of the court was erroneous, and should be reversed, and the cause remanded, with directions to set the judgment aside, and to render judgment for the appellant; and
It is so ordered.
BOTTS and FORT, JJ., concur.