67 Minn. 232 | Minn. | 1897
Summarized, the material allegations of the complaint are that the plaintiff, being about to employ the defendant Dillman as its agent to purchase, sell, and handle wheat and other personal property at a place called “Cobden,” and to furnish him money, grain, and other property for that purpose, Dillman, as principal, and the other defendants, as sureties, executed to plaintiff a bond, conditioned that, in the performance of his duties as such agent, he would, among other things, not sell, pledge, or dispose of any wheat or other property purchased for the plaintiff, or with its money, without its direction; that he would at all times keep on hand the full amount of wheat and other property which his reports showed on hand, and on demand deliver the same to plaintiff, and pay over all moneys in his hands belonging to the plaintiff, and pay to it all debts or demands due from him to it on any account whatever; that, upon the security of this bond, the plaintiff employed Dillman as its agent for the purposes aforesaid from April, 1891, to April, 1895. The complaint then alleges specifically a breach of each of the conditions of the bond, and especially that Dillman bought for the plaintiff, and with its money, a certain number of bushels of wheat, but has only accounted for or delivered a certain less number of bushels, and has failed and refused to deliver or account for the balance on demand; that his reports show in his hands a balance of over 8,000 bushels which he has failed and refused to account for; that there remains in his hands over $3,800 in money, belonging to the plaintiff, which he has failed and refused to pay over on demand.
The sureties interposed the following defense, among others, to wit, that the business and service for which plaintiff employed Dill-
The statute referred to provides that all persons engaged in any business requiring the use of weights and measures shall cause to be tried, proved, and sealed by the sealer of weights and measures in their respective counties, all scale beams, steelyards, weights or measures used by them in buying or selling any goods, wares, merchandise, grain or other commodities; that any person who shall buy, sell, or dispose of any such property by any scale beams, etc., which have not been proved and sealed in accordance with the statute, shall be deemed guilty of a misdemeanor, and, upon conviction, be fined not less than $5 or more than $100, and stand committed to the county jail until the fine is paid or he is discharged by due course of law. The facts alleged in the answer would constitute no defense as to Dillman, the principal on the bond. The grain and money having come into his possession as plaintiff’s agent, liis possession was its possession, and he would not be heard to justify his refusal to deliver the property to the owner, or his' embezzlement of it, on the ground that the owner had been guilty of some unlawful act in the manner of conducting the business.
The question is, do these facts constitute a defense in favor of the sureties? It will be observed that they do not allege any injury or prejudice to themselves resulting from the use of unsealed scales, but “stand pat” on the bare fact that such scales were used in the business in violation of the statute. It will also be observed that it is not alleged that the contract of employment and the bond were
It seems to us that the case stands exactly as if the defendants had alleged that plaintiff had embezzled the money which it gave its agent with which to buy grain, or that it cheated by means of false weights those from whom the grain was bought. The facts alleged constitute no defense in favor of the sureties any more than they would in favor of the principal.
The cases chiefly relied on by counsel for the defendants are Daniels v. Barney, 22 Ind. 207, and Thorne v. Travellers’ Ins. Co., 80 Pa. St. 15, both of which are, in our judgment, distinguishable from the case at bar. In both of these cases the plaintiffs had engaged in a business which was prohibited by statute, except by those who had first obtained a license or complied with other requirements of the statute. This the plaintiffs had not done. They could not recover without the aid of this illegal business,, which formed a necessary link in their chain of title. The decision in Thorne v. Travellers’ Ins. Co. is put substantially on this ground, although the court does not refer to the distinction which we have attempted to make. In Daniels v. Barney, the transaction contemplated by all parties at the time the bond was executed was an illegal one, and hence the bond was void ab initio. The court seems to place its decision, first, on this ground, and then proceeds to add another or second ground, in which they use the language relied on by counsel. Nowhere in the opinion is the point expressly or directly made that the illegal business was a necessary link in plaintiffs’ title, without which they could not make out a cause of action.
Order affirmed.