162 Iowa 351 | Iowa | 1913
I. Appellee has filed a motion to dismiss the appeal, or affirm the judgment, because, as he claims, no exception was taken by appellant to the judgment. By appellant’s amended abstract it appears that at the close of the trial the cause was taken under advisement by the court with the understand-mg that when the case was decided and judgment rendered an exception would be entered for the losing party. Appellant’s counsel were not present when judgment was entered. At a later term the appellant filed a motion to correct the record, to which appellee appeared and filed a resistance. On a hearing the trial court made a finding, from the evidence and his own recollection and knowledge of the facts, that it was understood by the parties, and the court, at the time of the submission, that an exception should be entered for the losing party, and that the exception for.the defendant was omitted by mistake. The court made the correction'as asked. To this order plaintiff excepted, but has not appealed therefrom; instead, it has moved to strike appellant’s amendment to the abstract. If the agreement and understanding between counsel, or the parties, was as the court found, it ought to be lived up to. But the action of the court was authorized by Code, section 244. Or if the exception was in fact taken at the time, but the record failed to so show, the entry could be made nunc pro tunc.
After the purchase by defendant he went East, for a time, and did not then remove the piano from the store, because he had no place to put it, but it was to be removed upon his return. It was the only piano of this description left in the store. It was not separated from the rest of the general stock and no marks placed on it to indicate that it had been sold to defendant, but it was referred to by other employees generally as defendant’s piano, and customers coming into the store were told that it was sold. Defendant remained in Schussman’s employ until August 4th, and at that time Schussman was owing him $130 after the piano was paid for. No receipts were passed between defendant and Schuss-man. The sale of the piano was established; witnesses other than defendant testifying in reference thereto and corroborat-. ing defendant. The trial court found that Schussman did orally sell the piano to defendant upon July 1st. On July 21, 1911, Schussman absconded, but it was not then known he would not return. It is admitted he did not pay or settle with plaintiff for the piano. August 4, 1911, plaintiff took
The fact that defendant did not notify plaintiff of the sale of the piano to him, when plaintiff took possession of it, with the other goods, is not material. Plaintiff was not placed in any different or more disadvantageous position than it would have been if defendant had immediately notified it. Plaintiff was not a purchaser or an attaching creditor. It advanced no money, extended no credit, and incurred no liability by reason of its ignorance of the sale. Nor is the fact material that plaintiff obtained possession of the piano when it took possession of the store on August 4th, for the reasons above given, and further that, if the title passed
Appellee relies on Smith v. Champney, 50 Iowa, 174, and Harris v. Pence, 93 Iowa, 481. We think these cases are not in point, for in them the rights of creditors were involved under what is now section 2906 of the Code, which provides, in substance, that no sale of personal property, where the vendor retains possession, is valid against existing creditors,
In McNeil v. Tenth National Bank (1871) 46 N. Y. 325 (7 Am. Rep. 341) (quoted in Mechem on Sales [Ed. 1901] section 157), it is said:
It must be conceded that, as a general rule, applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. But this is a truism, predicable of a simple transfer from one party to another where no other element intervenes. It does not interfere with the well-established principle that where the true owner holds out another, or allows him to*359 appear, as the owner of, or as having full power of disposition over, the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.
Under section 158 of Mechem on Sales is a quotation from a decision rendered by Lord Ellenborough in 1812, in which he says:
If the principal send his commodity to a place where it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity was sent thither for the purpose of sale. If the owner of a horse send it to a repository óf sale, can it be implied that he sent it thither for any other purpose than that of sale? Or if one send goods to an auction room, can it be supposed that he sent them thither merely for safe custody? Where the commodity is sent in such a way, and to such a place, the principal will be bound and the purchaser safe.
In the case of Calais Steamboat Co. v. Scudder, 2 Black (67 U. S.), 372 (17 L. Ed. 282), Van Pelt employed Vanderbilt to construct a steamboat for him. Vanderbilt lived in California and Van Pelt lived in New York. Van Pelt furnished the necessary means to Vanderbilt, and Vanderbilt proceeded then to construct the vessel, concealing the fact that he was doing this in reality for Van Pelt. Later, with the permission of Van Pelt and in fact owing to his express instructions, Vanderbilt enrolled the vessel in his own name. Afterwards, being in the possession of the vessel and having the indicia of ownership in the shape of documentary evidence, Vanderbilt sold the vessel to the plaintiff, the Calais Steamboat Company, for $88,000. The court says:
*360 Upon this simple statement of the case, it is not to be doubted but that the legal title to this vessel passed to the purchasers; for although as between Vanderbilt and Van Pelt, his principal, or the estate of Van Pelt, the legal title could not avail, beyond a lien for his services or for any advances, yet, as it respects third persons, who have bought in good faith and for a valuable consideration, the rule is different. The question then arise between two innocent parties, and the equity of the case turns against the party who has enabled his agent or any other person to hold himself forth to the world as having not only possession, but the usual documentary evidence of property in the article. . . . The ease furnishes a very strong illustration of this principle. All the indicia of property in this vessel in Vanderbilt existed from no fault of his, for he was clothed with it by the express authority of the principal. Van Pelt therefore took upon himself knowingly the responsibility of vesting the property of the vessel in Vanderbilt, as he must have known that it was in his power to deal with it as owner. Besides, he was extensively engaged in the business of steamboats in the waters of California, and doubtless understood, in point of fact, the responsibility he was assuming. Van Pelt died in September, 1853, while this vessel was under contract for construction. The event, however, did not interfere with it, as his legal representatives continued the arrangement the same after as before — furnishing the necessary funds, and carrying on the work until the vessel was finished. They took the place of Van Pelt. In order to weaken this view of the case, it is said that Van Pelt, before his death, changed the agency of Vanderbilt by the appointment of one E>. P. Vail. If this were conceded, unless it had the effect to change the apparent ownership of the vessel in Vanderbilt, the circumstances would be immaterial. No secret arrangements between the parties could affect third persons.
In the case of Heath v. Stoddard, 91 Me. 499 (40 Atl. 547) (1898), the owner of a piano placed the same in the hands of an agent who. was known to be a dealer in pianos. The agent was not given authority to sell the piano, but only to take it to the house of a prospective buyer. The agent sold the piano, and it was held that the purchaser might rely on
That the rule is recognized in Iowa appears from the following language taken from the case of Erickson v. Bell, 53 Iowa, 627:
A person dealing with an agent in regard to personal property intrusted to him by the principal, without knowl*362 edge that the property is not owned by the agent, bnt supposing him to be the owner thereof and the principal in the transaction, will possess all the rights that he would have acquired had the transaction been with the real principal. See Story’s Agency, section 444. This rule is applicable to the case before us. It is founded upon the plainest principle of law and justice.
In Crocker v. Brown, 40 Iowa, 144, the defendant shipped lumber to an agent by the name of Reed. The agent conducted the business of retailing this lumber in his own name. The plaintiff extended credit to the defendant, relying on his possession of the lumber. The court held that Reed was a general agent for the defendant and that there was no conditional sale such as to require recording within chapter 140, 14th G-. A. However, the court gave the following instruction, which was approved by the Supreme Court:
If the plaintiffs furnished and shipped to said Reed lumber in his own name, permitting him to hold himself out to others as the owner of the lumber thus furnished, with a secret understanding that they should be the owners of said property, said Reed holding it in trust for said plaintiffs, such agreement, consent, or understanding, if you should so find, would be in fraud of creditors extending credit without knowledge of the terms of the agreement and understanding between plaintiffs and Reed, and such property would be held liable for the debts thus created. The court says: ‘Thus a simple tacit permission upon the part of plaintiffs, with a knowledge that Reed was holding himself out as the owner, and a failure actively to interpose to prevent such a course would, under the instructions given, render the property liable for the debts of Reed. . . . The instruction given, we think, correctly presents the law.
See, also, Eclipse Wind Mill Co. v. Thorson, 46 Iowa, 181; Checkering v. Moulton, 107 N. W. (Iowa) 434; Hubbard v. Ten Brook, 124 Pa. 291 (16 Atl. 817, 2 L. R. A. 823 and note, 10 Am. St. Rep. 585.)
The following cases in regard to dealing with persons held to be general agents have some bearing. The tendency of the decisions is to favor parties who have dealt in good faith with agents, believing their authority to be extensive and who would come to grief if the employers were allowed to confine their agents within a scope too narrow. This view is well illustrated by the following language of Judge Weaver in the case of National Bank v. Dutcher, 128 Iowa, 413, 142 (Judge Weaver is quoting from a case in 37 Iowa, page 14): ‘ ‘ These men were its servants, working in its interest, and must be presumed to have had the authority usually exercised by other agents under similar circumstances. To say that its agents were vested with the mere naked power to sell and deliver, without any authority to waive or modify any term of the printed contract, would be, as is well said in the Pitsinowsky case, ‘to establish a snare by which to entrap the unwary, and enable principals to reap the benefits flowing from the conduct of an agent in the transaction of business intrusted to his hands, without incurring any of the responsibilities connected therewith.’ ” And see Palmer v. Cheney, 35 Iowa, 281 Steele v. Potthast, 109 Iowa, 413, 417.
There is no serious conflict in the evidence. The findings of the trial court have the force of a verdict of a jury, as to the facts. We think the trial court erred in its conclusions of law. In our opinion defendant was entitled to the judgment for the possession of the piano, and that he was and is the owner thereof. The record in this court does not show whether defendant gave a delivery bond or who now has the piano. The judgment is reversed and remanded for judgment in harmony with this opinion. — Reversed. All of the Justices concur.