42 W. Va. 229 | W. Va. | 1896
Bolin, as agent for Stevenson, sold a horse of Stevenson to Hayslip, taking in payment an order from Hayslip on Kyle. Before taking the order, Bolin asked Kyle if he would accept the order, and was informed that he would. At that time, Bolin owed Kyle a note for a larger amount than the order. Before the order was drawn, Hayslip also asked Kyle if he would accept an order drawn by him in favor of Bolin for the horse, and Kyle told him that he would, as Bolin owed him, and he could thus utilize the order. Neither Hayslip nor Kyle knew that the horse was not Bolin’s, or of any interest of Stevenson in the transaction. Bolin assigned and delivered the order to Stevenson. "When Bolin informed Kyle that he had the order, Kyle credited its amount on Bolin’s note to him, but never had possession of the order. When Stevenson presented the order to Kyle for payment, Kyle told him he had applied it on Bolin’s note, and refused to pay to Stevenson; and Stevenson sued before a justice, and, on appeal to the circuit court, there were a verdict of a jury and judgment in favor of Kyle, and Stevenson brings the case here.
It is clear that when Bolin, as agent for Stevenson, sold his horse to Hayslip, and for its price took the order in his own name, that order was Stevenson’s, though the legal title to the order vested in Bolin, because of the relation of principal and agent; and it falls under that ordinary rule that where one, especially in trust relation, buys property
But next the question comes up: Was there such a fund
If it be said that before Bolin took the order he asked Kyle if it would be good, and Kyle said “Yes,” it is to be said that Kyle understood that his debtor, Bolin, who owed Kyle much more than the order, was to be its payee, and it was not hinted to Kyle that Stevenson was to be its beneficiary. He had a reason for running the risk that Ilayslip would get an order from the county court on him, and that was that he might get so much as the order called for on Bolin’s note to him; and he stated to Ilayslip when asked by Ilayslip if he might draw the order that Bolin owed him aud he could thus utilize the order; but he had no such reason for agreeing to pay the order to another who did
Affirmed.