5 Colo. App. 172 | Colo. Ct. App. | 1894
delivered the opinion of the court.
In January, 1889, one E. A. Wheeler, agent for the plaintiff, soliciting orders for nursery stock, received from the defendant in error two orders, the first bearing date January 21st, amounting to $150, the other dated January 28th, amounting to $50.00, the goods to be delivered the ensuing spring. Both were signed by defendant, and both contained the following: “ for which I agree to pay * * * dollars and * * * cents in cash on the day of delivery.” The orders were by the agent sent to his principal, hut at what time is not shown.
On the second day of February following, Wheeler, the agent, bought of Magnes two mares for the sum of $300, and gave him the following papers:
“ Denver, Colo., Feby. 2nd, 1889.
“ Sioux City Nursery & Seed Co.,
“Sioux City, Iowa.
“ Gentlemen: From the first commissions due on sales of nursery stock, to be delivered in Denver, Colo., in April, 1889, you will please pay Mr. Peter Magnes, or order, the sum of one hundred (100.00) dollars and charge the same to my account. Value received.
“ Denver, Feby. 2, ’89.
“Received of Mr. Peter Magnes two bay mares, about three and four years old, branded ‘ M ’ on left thigh, in full payment for two bills, or orders, for nursery stock, one bill for $150.00 and the other for $50.00, bought of the undersigned, Wheeler, as agent of the Sioux City Nursery & Seed Co. by said Peter Magnes.”
In the spring the stock ordered was shipped to J. S. Michael, the delivery and collection agent of the company, for delivery, who tendered it to defendant, demanded cash payment, according to the orders, and refused to recognize Wheeler’s transaction in regard to the horses. Defendant
There are two or three facts that were more clearly brought out by the evidence on the subsequent than on the former trial, or which were overlooked or deemed unimportant in the former opinion, where it is said: “ At the time of, making the orders, Wheeler received from plaintiff two horses in full payment,” etc. The testimony upon the subsequent trial shows this to have been an error. Such was not the fact. The transactions were distinct, made at different times. The first order for $150.00 was made and executed by defendant January 21st, the second for $50.00 January 28th, the purchase of the horses on February 2d. The two orders signed
So far as shown by the evidence the agent was only a solicitor. When he had received the executed orders, his authority and control ceased. When the delivery and collection were to be made, J. S. Michael was the agent for those purposes.
Several days after closing the contracts Wheeler purchased the horses and executed the papers in evidence. The evidence of Wheeler that it was the transaction of the company, and that it had ratified it, with full knowledge, must be disregarded. It is not only contradicted by the officers of the company, but by his own written documents.
The receipt given defendant does not upon its face purport to be the receipt of plaintiff, nor does it in any way refer to or identify any transactions had with the plaintiff. It says : “ In full payment for two bills of nursery stock, one bill for $150.00, the other $50.00, bought of the undersigned. E. A. Wheeler.”
In the proper and ordinary course of business, the receipt would be kept by defendant and would not be transmitted to the company; consequently, they would have no knowledge of the fact that the agent was attempting to perpetrate a fraud on either of the parties.
By the order given for $100, which would go to the plaintiff, it was required to pajr the money out of commissions due him, and charge to his account, which only evidenced an individual transaction of the agent. Neither the defendant nor plaintiff could be misled by the paper, nor would it convey any knowledge to the company that horses or anything else had been purchased on its behalf and for which it owed a debt.
The subsequent testimony of the witness cannot overcome the paper by him executed, and give the transaction a different character. It was a subsequent and individual transaction, whereby he succeeded in defrauding the defendant
Where, as in this case, the principal has never held the agent out as having any general authority, the party dealing with him trusts to the good faith of the agent and not to that of the principal. The maxim “ that he, who without intentional fraud, has enabled any person to do an act which must be injurious to himself or to another innocent party, shall himself suffer the injury rather than the innocent party, who has placed confidence in him,” has no application here. The agent had not been held out as having a general power. No acts of the plaintiff misled the defendant — both were innocent parties. See Story on Agency, secs. 126 and 127, and note. That an agent to sell goods must sell for cash, and cannot trade or barter without special authority, is well settled. Story on Agency, sec. 78; Lloyd’s Paley’s Agency, 213; Guerreire v. Peile, 3 B. & Ald. 616; and authorities cited in former opinion (1 Colo. App. 45).
There is a supposed technical error relied upon and argued ably by counsel, but we do not find it necessary to decide it,
Reversed.