34 Mont. 142 | Mont. | 1906
delivered the opinion of the court.
This action was brought to recover damages for the breach of a written contract, under the terms of which, it is alleged, defendant on November 27,1899, sold to plaintiffs, as copartners, certain cattle and agreed to deliver them at any time from May 1 to 15, 1900, at a designated place in Dawson county. It is alleged by plaintiffs that they negotiated the contract with defendant through one Courtney, defendant’s agent, duly empowered to act in that behalf; that they made a cash payment
The grounds of the motion are errors of law in rulings upon the admission and exclusion of evidence, and in instructing the jury, and insufficiency of the evidence to justify the verdict. Since the order does not designate upon which of the grounds mentioned it was made, it must be affirmed if justified by any one of them.
Respondents insist that the granting of a motion for a new trial rests entirely in the discretion of the trial court, and that for that reason the order appealed from should be affirmed. For errors at law prejudicially affecting the rights of the movant, a new trial may be demanded as a matter of right. In such ease'the court has no discretion, if the error is made manifest. (State v. Schnepel, 23 Mont. 523, 58 Pac. 868.) When the ground is newly discovered evidence or insufficiency of the evidence to justify the verdict, the motion is addressed to the discretionary power of the court, and its action in the premises will not be disturbed by the appellate court unless it appears that there has been a clear abuse of this power. (State v. Schnepel, supra:
An examination of the record reveals the fact that upon every issue presented by the pleadings the evidence introduced at the trial involves an irreconcilable conflict. For this reason alone, we are of the opinion that the order of the district court was properly made.
It appears from the testimony introduced by the plaintiffs that during the latter part of August, 1899, the defendant, being desirous of closing out his cattle interests in Dawson county, went to one "William Courtney, a broker in Miles City, Custer county, and listed his stock with him for sale, stating to him the character of the different classes of cattle he had and the prices he asked. He thereupon dictated a circular letter, to be addressed by the broker to various persons who might desire to buy his cattle, stating the terms upon which he wished to sell. Among other things this circular letter stated the number of steers of various ages owned by the defendant, and also of cows and heifers. It also stated that there had been branded the preceding spring one hundred and forty-four calves, that there would probably be branded that fall fifty or sixty more, and that under the terms of the sale the calves would be thrown in. A cash payment of $5 per head, amounting to $5,000, was required. The place of delivery designated was Miles City stockyards. He thereupon went to his home, some one hundred and twenty-five miles away, in Dawson county. In the meantime, and prior to November 24th, there was some correspondence between himself and Courtney as to the sale of the cattle; and on or about November 13th Courtney wrote the defendant that he had possibly secured a purchaser for his cattle to be delivered at a designated place in Dawson county on or about May 15th, upon the conditions and at the prices fixed by the defendant.
Counsel say, however, that under section 3276 of the Code of Civil Procedure, and sections 2185 and 2340 of the Civil Code, the contract of sale, in order to be valid, must have been in writing and signed by Kramer or his duly authorized agent, and since it does not appear that Courtney’s authority was in writing, the contract as made by him was void. In support of this contention they cite also section 3085 of the Civil Code. This section declares: “An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. ’ ’ The fallacy involved in the contention is the assumption that the contract falls in the class of those that must be evidenced by writing, under the sections of the Civil Code and of the Code of Civil Procedure, supra.
Under the instructions given by Kramer to Courtney, a part of the purchase price was to be paid down, and this was done. This brings the agreement clearly within the exception provided for in the sections cited with reference to the sale of chattels. Section '3085, supra, therefore has no application. If the contract had been negotiated by Kramer himself and had been oral, the part payment to him would have brought it within the exception. Since this is so, oral authority to Courtney to act for him in the making of the contract was valid; for under section 3085, supra, Kramer could orally authorize Courtney to make for him any contract which he himself might make orally. Nor was the relation of the parties or the authority of Courtney changed by the fact that Courtney, doubtless for safety, drew up and signed the memorandum for Kramer. It cast no greater burden upon Kramer than it would had it been left to rest entirely upon oral evidence. If Courtney had authority to act for Kramer, as this evidence tends to show, the latter could not,
Counsel also contend that Courtney had no authority to accept Case’s check to meet the cash payment required. If Case’s testimony touching his conversation with Kramer on November 24th, in which he was told to go to Courtney to make the purchase, is to be accepted as true — and for present purposes it must be so accepted — Courtney had ostensible authority to negotiate the sale, and in connection therewith to do everything necessary, proper and usual in the ordinary course of business for effecting the purpose of his agency. (Civ. Code, secs. 3093, 3095.) But we are not now called on to inquire whether it is usual or customary in such transactions to make .payments in checks. The cheek given by Case and accepted by Courtney was afterward actually cashed by the drawee, and the amount thereof paid by Courtney to the credit of Kramer. It is the rule that an agent, under his authority to receive payment, may not accept anything but cash. (1 Am. & Eng. Ency. of Law, 2d ed., 1003; Mecnem on Agency, 321.) Yet, if the check received is actually paid by the drawee, this constitutes payment to the principal, even though the agent misappropriates the fund and converts it to his own use. (Mechem on Agency, 382; Sage v. Burton, 84 Hun, 267, 32 N. Y. Supp. 1122; Kansas City etc. R. R. Co. v. Ivy Leaf Coal Co., 97 Ala. 705, 12 South. 395; Harbach v. Colvin, 73 Iowa, 638, 35 N. W. 663; Bardwell v. American Express Co., 35 Minn. 344, 28 N. W. 925.) Nor is it of importance that the check made payable to the order of Kramer was indorsed in his name for collection by Courtney without special authority. The money went to Kramer’s account, and thus he actually received it.
Appellants contend, further, that the specifications are not sufficient to point out the particulars wherein the evidence is alleged to be insufficient to justify the verdict. The objections made to them are general and to the effect that, instead of setting out what the evidence does not show, they urge what the evidence does show. We think, however, that the specifications
Since, for the reasons stated, it was within the sound discretion of the district court to direct a new trial, it is not necessary to discuss the other points presented. The order is affirmed.
Affirmed.