50 Mo. 375 | Mo. | 1872
delivered the opinion of the court.
The defendants were auctioneers in Kansas City, and sold at auction a span of horses, wagon and harness, which were bid in by .the plaintiff. The property turned out to have been stolen and was reclaimed. This suit was brought upon a warranty of title, the plaintiff claiming that defendants expressly warranted it to be good. The cause was submitted to the court upon conflicting testimony, and its finding must be sustained if founded upon correct declarations of law.
The contract or bill of sale referred to is as follows :
“Kansas City, June 23,1868.
“Beceived of J. "W. Schell three ($300) hundred dollars for one hay and one gray horse and one two-horse wagon and harness. A. B. Ledyord.
Stephens & Sons."
The mere fact that defendants were actiug as auctioneers is not of itself notice that they were not selling their own goods, and they must be deemed to have been vendors, and responsible as such for title, unless they disclosed at the time the name of the principal. (Mills v. Hunt, 20 Wend. 431; Sto. Agency, §§ 27, 267.) This court, in Thompson v. McCullough, 31 Mo. 224, applied the principle to vendors of commercial paper. If the above receipt and bill of sale is to be treated as the contract between the'parties, it is evident that the defendants undertook to sell the property as principals, and that the plaintiff purchased from them as well as Ledford, although the latter might have been the principal in fact; and parol evidence will not be admitted to contradict it and show that they did not sell as principals or intend to hold themselves responsible as such. It is said that the receipt may be explained. So it may, by showing that the $300 was not actually paid, or that more or less was paid, or even that there was no transaction of the kind. But when a sale by an agent is made, and the purchaser, who is deeply interested in the
I find no error in the record, and the judgment will be affirmed.