The contract in question, instead of being a brief and clear statement of the agreement of the parties, as all such instruments ought to be, is as voluminous as an insurance policy and is full of obscure and indefinite statements. It is not practicable to incorporate it in this opinion. It would occupy about five pages of our reports. It is dated on the 17th day of February, 1875. It states that Bayliss, the plaintiff herein, appoints Stinson an agent for the harvesters for the season of 1875, and agrees to allow him a commission of forty dollars
The foregoing is the substance of the material parts of the contract. It will be readily seen that it is a contract creating an agency and not a contract of sale. The advance of money by Stinson and giving notes for the machines, ordinarily, without explanation, would indicate a sale, but when considered in connection with the fact that he was to be repaid the advances from the cash payments made by farmers to whom he might sell -machines, and that his notes were to be taken up and paid by the notes taken of the farmers, this part is not inconsistent with the agency which is set out in other parts of ths contract.
We do not think that the bill of the machines sent by Bayliss to Stinson made any change in the contract,. or made it other or different from what it was when signed by the parties.
Counsel for appellant urges that Stinson paid three-fourths of the purchase money, and executed to the plaintiff' his promissory note for the balance, and thus paid the entire consideration, and that this indicates a sale.
What was shown upon the trial we cannot determine, as the evidence is not contained in the record before us.. The contract shows that Stinson ordered fifteen machines, and that he was to sell them so they would net the plaintiff $2,400.. lie made an advance in money and a note to the amount of eight hundred dollars, or one-third, and agreed to give notes for the balance, which would be $1,600. Suppose he did give these notes; they are entirely consistent with the contract as a contract of agency. He was required to sell for one-third cash in hand and take his advances out of the first payment; he was to take farmers’ notes for the two-thirds, payable to plain • tiff, and with them he was to extinguish his notes given for that part which was not advances.
Whatever application the rule contended for may have in cases of conditional sales, we are clear that it cannot obtain in favor of an agent who fraudulently disposes of the property of lfis principal. Of course no action will lie upon the note against Stinson for the machines recovered in this action. The judgment against the defendant in this action entitles Stinson to a credit on his notes the same as though he had sold the machines to farmers and sent their notes to plaintiff to be credited.
In answer to certain special interrogatories, submitted at the instance of the defendant, the jury responded as follows:
“ 1. Did defendant at the time of his purchase of the harvesters in controversy know that Stinson was indebted therefor?
“Ans. Tes.
“ 2» Did defendant at the time of such purchase have any knowledge that Stinson intended to defraud the plaintiff?
“Ans. Tes.”
At the same time at which the verdict was returned the jury gave to the presiding judge a communication upon a separate piece of paper, which is as follows:
“ To the Court: — We, the jury, respectfully state to your Honor that the first and second interrogatories requiring positive answers were of such a nature that the evidence in the case would hardly warrant definite answers to the same, either in the affirmative or negative. We hope this modification of our answers to interrogatories will be accepted by your Honor.
A. Snxder, Foreman.”
There is no inconsistency between the answers to the interrogatories and the general verdict. The only question is, are the answers to be taken as the response of the jury to the interrogatories? They answer the questions in the affirmative, and say to the judge in a separate paper “that the evidence in the case would hardly warrant us in giving definite answers to the same either in the affirmative or negative.” It must be meant by this that the question was nearly in even balance in their minds, but the answers show that they concluded to answer in the affirmative.
The record does not show that any action was taken by the court upon the communication returned with the verdict. We cannot regard it as part of the verdict; it is merely explanatory of the state of the jurors’ minds upon these interrogatories. It is to be presumed the court followed section 2803 of the Code, and that upon the reading of the verdict to
Believing, as we do, that there is no error in the record before us, the judgment of the court below must be
Affirmed.