188 Iowa 947 | Iowa | 1920
Stating the facts briefly, as testified to by the plaintiff Isaac, Pace appeared at his shop on December 26, 1917, as
“Draft not good unless coupon invoice attached is properly signed, and in payment for goods in our line.”
Hughes insisting upon cash payment, the plaintiff advanced the amount necessary to pay for the furs.
This is the foundation of plaintiff’s alleged cause of action, whether it be based upon th¿ draft issued to it by Pace, or upon the fact that money was thus paid at the request of Pace. It should, perhaps, be noted at this point that Pace testified that he had not even requested such payment by plaintiff, but that the plaintiff volunteered such advancement, and its offer was acquiesced in by Pace. If this latter fact should be deemed material (and we think it is not), we should have to accept the statement of Pace, in support of the finding of facts by the trial court.
(1) The plaintiff might have stood in the position of a lender of the money.
(2) It could have stood in the position of having paid money at the request of Pace, to the use and benefit of the defendant.
(3) Pace could have issued to Hughes his usual form of sight draft, with invoice attached, appropriately signed and receipted by Hughes, which draft could have been transferred by Hughes to plaintiff.
(1) It could, with the consent of Hughes and Pace, have made itself the purchaser of the furs from Hughes, and the seller of the same to the defendant.
If plaintiff had stood upon the first hypothesis above, and had proved the authority of Pace to borrow money upon the credit of his principal, then it would be entitled to recovery, regardless of any defense which such principal had as against Hughes. But the burden of proof of authority in Pace would have been upon the plaintiff, and this record indicates that such proof could not have been made.
If it had stood upon the second hypothesis, and had proved that the defendant did accept the benefit to the procurement of which plaintiff’s money had been paid, we may assume that this would have been a sufficient ground of recovery. But the burden of proof of acceptance of benefits, as in the nature of ratification of an act of agency, would, in such case, be upon the plaintiff. Such proof would necessarily negative the very defense upon which defendant successfully stood in the trial court.
If it had stood upon the third hypothesis, it would have found itself a holder of nonnegotiable paper. Its rights thereunder would be subject to any defense good against
The fourth hypothesis was the one actually adopted. The plaintiff treated itself as the seller of the furs, and accepted from Pace a sight draft upon the defendant, and signed and receipted the invoice attached thereto, as the purported seller of the gooffs 'described in the invoice. It thereby made itself subject to the defense set up, in so far, at least, as such defense is baijed upon a total want or failure of consideration, in that the furs were, in fact, totally worthless.
The finding of the trial court in this regard was purely a finding of fact, and has abundant support in the evidence.
It is manifestly true that plaintiff was not guilty of any intentional fraud. It put itself, however, in a false position, which, as between it and the defendant, it was not justified in doing, when, for the purpose of collecting the draft from the defendant, it represented itself as seller of the furs.
If this were an action against Pace himself, a very different question would 'be presented. But the defendant rejected the furs, as the purported benefits, and returned the same immediately to plaintiff, with notice of their rejection. Plaintiff held its cause of action, therefore, subject to the defense set up by defendant. The finding of the trial court has the effect of a verdict, and is well supported by the evidence. We cannot, therefore, interfere with it.