148 Minn. 178 | Minn. | 1921
Action to recover the balance due upon a promissory note. A verdict was directed for the plaintiff against both of the defendants. The defendant Miller appeals from the order denying' his motion for a new trial.
There is testimony tending to show that, as an inducement to Miller to sign as surety and as a consideration for his signing, the plaintiff agreed, through its agent, that it would apply from moneys coming to it from Yahnke $100 per month upon the note; that Yahnke assented, that Miller signed upon the condition stated; that Yahnke paid the plaintiff from time to time sums of money which, if applied as
The evidence was in dispute, but the jury could find that the agreement claimed was made. If made the plaintiff’s failure to apply moneys upon the note as agreed was a release of Miller.
Meyer was the plaintiff’s agent at Winona and its only representative there. He attended to the sale of the plaintiff’s product and made collections. He attended to the making of loans to saloonkeepers to pay • for their licenses. Yahnke rented a building from the plaintiff through Meyer and paid the' rent to Meyer. He was the only person whom Yahnke met in his transactions with the plaintiff. When he dealt with Meyer he was as near the plaintiff as he ever got. Meyer went to Miller with Yahnke to get the note signed, and it was then that the agreement mentioned in the preceding paragraph was made.
With the facts as recited it was at the least a question for the jury whether Meyer was acting with implied or with apparent authority. Dunnell, Minn. Dig. & 1916 Supp. §§ 149-169, and cases cited. The distinction between implied authority and apparent authority is noted in Johnson v. Evans, 134 Minn. 43, 158 N. W. 823.
Several matters are discussed in the briefs which are not raised by the assignments of error and we do not consider them. •
Order reversed.