186 Iowa 769 | Iowa | 1919
Defendant brought a herd of hogs from Missouri to Council Bluffs. He intended to sell them in Mineóla, and at auction. There had been hog cholera at Mineóla. An acquaintance of defendant’s advised him that he could sell at Mineóla if the hogs were vaccinated; and defendant had this done. He then shipped to Mineóla, and began an auction sale. He employed one McKenzie as auctioneer, and McKenzie acted. The testimony of the auctioneer, which is one of the subjects of the present complaint, was this:
“Before the sale, Poston handed me the certificate from the veterinary, Dr. Hollingsworth, and asked me to read that, and I did. He said he would guarantee the hogs to be vaccinated, as near as I can remember. He said he guaranteed these hogs to be vaccinated, and immune from cholera; that is the representation I sold, or tried to sell, them under.”
Other testimony objected to was that of four persons present, who testified that the auctioneer said the hogs were guaranteed to be immune. Both plaintiff and defendant were present. Some question was raised about a guarantee, and an abortive attempt to get a veterinarian on the telephone was made. Defendant then declared he knew the hogs had been vaccinated, and had himself assisted in the operation. After all this had been said and done, the auctioneer sold some of the herd, and plaintiff bought part. After the sale had proceeded for a short time, defendant
It may be conceded, for the sake of argument, the jury could have found that the alleged warranty limited the remedy of the plaintiff to have defendant furnish re-vaccination. It could also find that that was not the limitation upon the warranty, and that the auctioneer and the defendant, in the presence of the plaintiff, made the statements found in the testimony objected to. That being so-, it would seem that the testimony received was rightly received. Assuming authority in the auctioneer, what the testimony tends to show he said certainly tends to prove the warranty alleged. There can be no serious question about want of authority, because the defendant was pi’esent when the statement was made by the auctioneer, and defendant himself made substantially a like statement. We gather, then, that the real objection is the untenable one that the auctioneer acted without authority, or beyond the scope of his
“The doctrine that a discharged agent may, under some circumstances, bind his former principal to the extent of the authority with which he had been apparently clothed, has no application beyond the claims of the agent.”
Though Lindmeier v. Monahan, 64 Iowa 24, is not strictly in point, it does have substantial bearing in support of the action below. In the Linchneier case, certain fraudulent representations had been made, which induced the plaintiff to buy from another, and we said:
“If it should appear that Studman had no authority fi'om defendaxxts to xxxake the fraxxdxxlent representations, the case is the sanxe. It cannot be doubted that, with knowledge and coxxsent of the defendants, Studman took part in the xxegotiations leading to the purchase, in the course of which the false representations were made. The object of their negotiations was the benefit of defendants by securing a purchaser. Studman will be regarded as defendants’ agent, and they will be responsible for the fraxxd.”
In one xvord, the' evidexxce received x’elevantly supported the theory of the plaintiff, with which the jury agreed. Sufficient foundation appeared so that, if made, the statements would bind the defendant. Therefore, we hold that there was no error in receiving and retaining this testimony, and letting the jury say, as a question of fact, with the aid of such testimony that the claim of plaintiff was established.
We are unable to see how we can entertain the error assignment now made on this instruction. Review thereof is limited by the exceptions taken. A sufficient exception may not entitle to review, if the brief does not meet the rules. But no brief will obtain review in so far as the brief goes beyond the exception taken. Powers v. Iowa Glue Co., 183 Iowa 1082. Now, here is a complaint that the court erred in failing to include certain things in a stated instruction. Here is an exception that the court erred because it did put into the instruction the very thing the omission of which the assignment complains of. We think the exception controls, and that, for the purposes of reviewing this assignment, we must meet the claim that it was error to omit a stated thing from the instruction by holding that the exception concedes that that thing was not omitted therefrom.
The judgment is — Affirmed.