24 Minn. 332 | Minn. | 1877
Lead Opinion
A statute of Wisconsin, approved March 3,1869, entitled, “An act to protect the lands and timber thereon granted to the St. Croix and Lake Superior Railroad Company,” authorizes the governor of said state to appoint one or more agents to preserve and protect the timber above mentioned, and makes it the duty of such agent or agents, on behalf of the state, to take possession of all logs and timber which may be cut or carried away from said lands without lawful authority, and to sell and convert the same into money, to be immediately paid into the state treasury, “provided that such sale of timber or logs so seized shall be made at public auction to the highest bidder, for cash.”
The sale which the agent is authorized to make is clearly a sale for money, to be paid in hand at the time of sale, so that he can pay the same into the state treasury “immediately.” As the agent has no authority in the premises, save that which he derives from the act, this is equivalent to a prohibition to sell for anything but money in hand. A sale for anything but money in hand is therefore wholly unauthorized and void.
The authority of the agent being to sell for money in hand, the defendants, upon a purchase by them, were not entitled to the possession of the logs except upon paying, or at least tendering, the purchase price in money, and by reason of the same limitation upon his authority the agent had no right to deliver possession of the logs to the defendants except upon such payment or at least tender. A delivery without payment, or at least tender, was therefore wholly unauthorized and void, and conferred no right whatever in the logs upon the defendants, as against the state of Wisconsin.
One Harriman having been duly appointed agent under the
The referee before whom this case was tried finds “that at the time and place mentioned in said notice said logs were offered for sale in accordance with said notice, and to secure the possession of said logs, and under protest theretofore made against his right to seize or sell the same, these defendants bid the sum of five dollars and one cent per thousand feet for 1,676,180 feet thereof, and i*vo dollars per thousand feet for 200,000 feet thereof, and said logs were thereupon struck off and delivered into the possession of these defendants; that the note in suit was given by defendants to said * * * * Harriman for the amount so bid on said sale for said logs so cut and removed as above stated, and for no other purpose or consideration; that all the acts and doings of said Harriman in and about the premises were as the agent of the •state of Wisconsin, under the act of the legislature of said state.”
The note in suit was made and delivered about five months after the day of sale of the logs.
Upon this state of facts we think the referee was right in his conclusions of law, which were, in substance, that the sale was unauthorized and void; that the plaintiff was not bound by the sale, and did not thereby lose its right of property in the logs, and that the note, having no other consideration to support it than such unauthorized and void sale, is null and void, and the plaintiff is not entitled to recover thereon. As the authority of the agent to make the sale was conferred by, and mostly dependent upon, an act of the legislature — that is to say, a statutory law — and his attempted sale was void because it failed to comply with such law, the sale could be ratified and made good only by an act of the legislature.
This is so, for the reason that the sale, being authorized to be made in a particular way by statute, and therefore forbidden to be made in any other way, asy attempted ratification
As there is no pretence in this case that the sale attempted to be made by Harriman was ratified by any legislative action, there is no ground for .claiming that the sale or note have been made good.
Judgment affirmed,
Dissenting Opinion
dissenting. I think the referee erred in his conclusion that the sale by the state’s agent was a sale upon credit, and therefore unauthorized. The notice of sale was express that he would “sell all said logs at public auction to the highest bidder, for cash.” As the facts are found by the referee, the agent did offer them for sale in accordance with the notice — that is, “at public auction, to the highest bidder, for cash” — and upon these terms the defendants, Torinus, Staples & Co., made their bid and it was accepted. This made a contract for the sale of the logs which bound said defendants to take them and at once pay the price. Until it was abandoned by mutual consent, or by one party for the default of the other, it was binding upon both parties. Although it might not be immediately consummated by delivery of the logs and payment of the price, the state had at once a right to tender the logs and demand the sum bid, and the said defendants the right to tender the price and demand the logs. Had the defendants refused to pay the price upon the state’s demand and tender, I have no doubt that the state, holding itself ready to comply >n its part by delivery of the logs, might at once have brought an action for the price. The agent had no authority to deliver, nor the defendants to receive from him the logs without payment of the price. They were, however, thus wrongfully delivered and received. This wrongful act could not release the defendants from their obligation to pay the amount of their bid, nor vitiate the already exist
The liability of the defendants to pay the bid was a sufficient consideration for the note, which appears from its date to have been taken for such bid some months after the sale. Although the agent’s authority to take the note instead of insisting upon payment of cash may be doubted, I see no reason to doubt that the proper officers of the state, those whose duty it was to enforce its claim against defendants by action, might ratify it and make it the basis of an action instead of the original transaction. At. any rate the defendants have no right to complain if they have done so.
The judgment should have been for the state for the amount of the note and interest.
