80 Neb. 36 | Neb. | 1907
Plaintiffs, Northup and Renie, were successful in the lower court-in this an action of replevin to recover from defendant, Bathrick, about 800 bushels of wheat, and the latter appeals.
In 1905 plaintiffs were engaged in the real estate business at Arapahoe, Nebraska. J. W. Tomblin, a nonresident of this state, owned a farm of 320 acres a few miles from that village. The defendant occupied it as tenant,
1. It is argued by plaintiffs that the judgment should
2. After sending the telegrams and letters preserved in the record, and receiving and acting upon Tomblin’s answers thereto, and accepting the sum requested and obtained by plaintiffs from Tomblin as commission, plaintiffs will not he heard to say that there was no contract of agency. See Quertermous v. Taylor, 62 Ark. 598, 37 S. W. 229.
3. Neither can it be claimed that defendant should he required to surrender the property to plaintiffs because his landlord (Tomblin) did not intervene and establish his right to possession. The rule is well established that in replevin the plaintiff must rely upon the strength of his own title, and cannot rely upon the weakness or lack of title of his adversary. St. John v. Swanback, 39 Neb. 841; Johannson v. Miller, 45 Neb. 53; Herman v. Kneipp, 59 Neb. 208. Defendant was in possession of the wheat as tenant of Tomblin, and it was competent for him to challenge the plaintiffs’ title and 'defeat it by showing title and the right of possession in a third person. Sutro v. Hoile, 2 Neb. 186; Fuller v. Brownell, 48 Neb. 14.
4. Defendant seeks a reversal for the reason that the judgment is not supported by the evidence; that the evidence shows that plaintiffs did not in fact make a sale of the crops, but, under a pretense to him that the crops were sold or the rents assigned, attempted to appropriate the same to their own use. No rule is better settled than that an agent is required to disclose to his principal all the information he has touching the subject matter of the agency, and that his relation to his principal forbids his becoming a purchaser thereof for his own benefit, in any way, without the full knowledge of the principal of this fact. Jansen v. Williams, 36 Neb. 869, and cases there
Plaintiffs attempt to justify their conduct in this way: They claim that Tomblin parted with his title to the land and to the crop to Goethe, the purchaser, and that they acquired title to the crop from Goethe for a valuable consideration. This contention is not sustained by the evidence. There is nothing in the record tending to show that the purchaser acquired the assignment of the lease and then transferred his interest therein to the plaintiffs. It is undisputed that the lease was assigned in blank and plaintiffs’ name inserted without the knowledge or consent of Tomblin, their principal, and that the purchaser never knew that the crops were offered with the land, or that Tomblin intended to sell the crops or assign his lease. The claim of plaintiffs rests upon indefensible grounds and cannot be sustained.
The judgment of the district court should be reversed
By tbe Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.