Tacoma Lumber & Shingle Company, which had been shipping shingles to the plaintiff company in Nebraska and had already executed to it a chattel mortgagе, had become embarrassed, and at a certain time the plaintiff’s president, one Bradford, consulted with the shingle company’s officers at Tacoma as to furnishing it further aid. With Crandall, the president of the shingle company, Bradford had long acquaintance. He had at one time been his employer, so he accepted his suggestion that defendant Buchanan act as a depositary or agent in further advanсes. The result was a conversation between Bradford and Buchanan in which the latter undertook to act. Two thousand dollars was to be рut in his hands by Bradford. With this logs were to be bought as the property of Bradford’s company. Whatever the conversation may have been, it finally
“In order to facilitate matters (as I judge from Mr. Crandall’s telegram that it needs quick action), rather than wait for draft, am enclosing you voucher for $£,000 as per my agreement with you, i. e. to the effect that the money is to be paid for lоgs delivered to the mill of the Tacoma Lumber & Shingle Co. to be sawn for our account, shingles or proceeds of same to be turned ovеr to us as soon as sawn and dried, less 75c per M to be paid by you to the Tacoma Lumber & Shingle Co. for sawing, drying, loading, etc.
“Please see that shipments are made as rаpidly as possible, and the amount returned as soon as it can be done, without inconvenience to the operation.”
Buchanan, dеpositing the money to his own account, speedily expended the whole in logs which he turned over to the shingle company. Shingles were later shipped to ,the Bradford company, but no definite testimony is produced as to their quantity. According to defendant’s testimony, all these lоgs seem to have been, as fast as manufactured, turned over in carload lots to Bradford, who, however, relates the receipt of only one. This was, it is admitted, accompanied by the shingle company’s draft for payment as if it were not •the product of the Bradford cоmpany’s own logs. This draft he paid, protesting immediately, however, and deL manding, in a letter to Buchanan and a communication to Crandall, thаt the product be shipped and the $£,000 spent according to what he called the terms of the letter.
The shingle company going soon after into the hands of a receiver, plaintiff contends that it has never received any of this $£,000 from Buchanan or the shingle company, eithеr in product or in cash. Buchanan, for his part, shows conclusively that he at least has got none of this money, and that, while he paid some debts of the shingle company^ he was acting entirely gratuitously as a friend to both other parties and, as he thought, carrying out terms agreed to by
This case comes to us without apparent attempt on either side to develop it to a point where the court could properly dеcide. We cannot affirm the judgment for all the $2,000 against Buchanan. From the briefs and the record, it is plain that counsel on neither side presеnted the case upon the sole theory upon which it should be considered, that of a gratuitous bailment or, more properly, what is known аs mandate. Under all the authorities, a mandatary is liable only for gross negligence, and while he must not disregard plain instructions, he is not punished when hе honestly mistakes instructions. Now at the end of this letter is a qualifying phrase, the money or the proceeds are to be returned as soon аs may be “without inconvenience to the operation,” nor can we overlook the fact that, as this letter itself shows and as the cirсumstances fully disclose, Crandall was not to be without some part in this business. Moreover, no testimony whatever is adduced to show whether, in paying the small floating debt, Buchanan used part of the original $2,000 or part of the proceeds of the manufactured product sold to others. Thе testimony is clear, too, that sundry creditors were pressing the company, and one even threatening to take out part of the equiрment, which surely the plaintiff itself, already a mortgagee, had reasons to see remain. Nor is it to be overlooked that the logs of plаintiff would become involved in laborers’ claims in the event of failure,- and probably in receivership expenses.
In this case no attempt has been made to ascertain that loss. Indеed, the theory of plaintiff seems to have been that the departure from instructions made Buchanan hable at once for the whole. This was quite erroneous. In Turtin v. Dufief,
These doctrines and authorities are not discussed in the arguments before us, and the lower court also, it is manifest, was not assisted toward the real principles and liability here involved.
Moeeis, C. J., Main, Holcomb, and Paekee, JJ., concur.