| Wis. | Apr 8, 1913
Who owned tbe claim against Wirtb when tbe gamisbee summons was served on bim ? Tbe answer to that will answer as to whether tbe intervening defendant was entitled to tbe money paid into court to discharge tbe indebtedness.
It is useless to claim that tbe sales company paid tbe Dick-insons as a mere volunteer. When tbe company received Wirth’s draft, it accepted such draft, provisionally, as payment and was warranted, as mutual agent, in doing so and advancing tbe amount of tbe draft to tbe Dickinsons, taking its chances on tbe draft being honored by tbe drawee. Since tbe sales company bad no right to take anything but money as a condition of delivering tbe horses to Wirtb, in taking tbe draft it became liable to tbe Dickinsons and tbe owner of tbe paper. Upon that being dishonored and returned, tbe claim against Wirtb was, necessarily, revived in its favor, rather than in favor of tbe Dickinsons. It bad no claim against tbe latter for tbe return of tbe money. All that is according to the natural order of things and elementary principles.
Tbe general rule is that a person employed to sell another’s property at auction, or a factor to whom property has been consigned for sale, has an interest, upon a sale being made, in tbe proceeds, entitling bim to sue and recover tbe same in bis own name and, in case of his paying tbe net proceeds and delivering tbe property before receiving payment from tbe buyer, as in this case, and tbe principal accepts and retains tbe money, tbe agent is entitled to recover of such buyer for bis own use. Tbe respondent was a factor. Tbe circumstance that it was permitted to sell tbe property at auction did not make any difference in its status. As indicated, a factor, tbe -same as an auctioneer, is entitled to sue for tbe sale price in bis own name and control tbe litigation if tbe principal does not prohibit it. Beardsley v. Schmidt, 120 Wis. 405, 98 N. W. 235. In ease of tbe principal receiving full payment from tbe agent in advance of tbe latter obtaining payment from tbe purchaser, tbe agent is tbe sole party in
Under the facts of this case, there is no question but that the sales company was the owner of the claim against Wirth when the latter was garnisheed, the money as soon as paid into court was impounded for its use, and the judgment rendered, accordingly, is clearly right.
By the Court. — Judgment affirmed.