76 Mo. App. 418 | Mo. Ct. App. | 1898
Said Stack replevined the cattle from Clark. Thereupon plaintiffs paid Clark the amount they had received from him for the cattle, and then demanded payment of the same from defendants. The defendants refused to recognize any liability on their part, they claiming that they sold the cattle ás agents of Moreland, that they disclosed their agency, and the name of their principal at the time of the sale, and had pointed out Moreland to plaintiffs as the reputed owner of the cattle, and that plaintiffs knew at the time that
Plaintiffs brought suit against the defendants in the district court of Wyandotte county, Kansas, upon a petition similar to the original petition filed in this case; there was a verdict for plaintiffs, and an appeal to the supreme court of Kansas. The case was reversed and remanded for a new trial, the court virtually bolding that upon the facts as they appeared in evidence defendants were not liable. Irwin v. Thompson, 27 Kan. 643.
The petition then sets out the sale of the cattle by plaintiffs to Clark; that the cattle were not the property of defendants but were the property of one John Stack; the recovery of the cattle by Stack from Clark, repayment by plaintiffs to Clark of the purchase price he had paid to them; demand of defendants by plaintiffs for repayment, defendants’ refusal, and asks judgment. The original petition is set out in full in the statement of the case on the former appeal to this court. See 42
The defendants’ amended answer is a general denial, a plea of former adjudication in the supreme court of Kansas, and that the sales occurred wholly within the state of Kansas, and that under the law of that state defendants were not liable. Plaintiffs’ amended reply was a general denial.
1. “If the jury believe from the evidence that the cattle in controversy in this case were stolen from John Stack and his wife, the owners thereof, and shipped to the defendants at the Kansas City Stock Yards, who sold them to plaintiffs, who bought them on their own account for $536.61, and delivered the same to them, and that the plaintiffs turned said cattle over to one Clark, from whom they were subsequently replevied by said John Stack and wife, notice of said suit having been given to both plaintiffs and defendants • in this action, and that the plaintiffs repaid to said Clark the price paid by him to plaintiffs for said cattle, then the plaintiffs are entitled to recover from the defendants in this action the sum of $536.61 so paid them by plaintiffs, with interest at six per cent per annum from the
The defendants requested the court to instruct the jury as follows:
1. “If the jury believe from the evidence that the plaintiffs bought the cattle for Clark and charged him a commission for their services, then they can not recover, and their verdict must be for defendants.” 2. “ ‘Commission’is the compensation paid by a principal to an agent for the transaction of certain business for the principal by the agent.” 3. “If the jury believes from the evidence that plaintiffs and defendants on the fifth day of July, 1879, had all the transactions relating to the sale of the cattle in controversy in the state of Kansas, then their rights are governed by the law of said state, and if the jury further believe from the evidence that defendants sold the cattle as agents of W. H. Moreland, and not as their own, and disclosed their agency and the name of the owner prior to and in the making of the sale, and if the jury further believe from the evidence that the law of the state of Kansas relieves them from liability if they sold as such agents, then plaintiffs can not recover.” 4. “In determining
The court gave instructions numbers 2, 3, 4, 5, 6, 7 and 10, as asked by defendants; but refused to give
1. “If the jury believe from the evidence that plaintiffs bought the cattle for Clark, and not on their own account, and charged him a commission for their services, then they can not recover and their verdict must be for defendants.” 8. “The court instructs the jury that there was no implied or express warranty in the sale of the cattle in controversy unless they were stolen.” 9. “That while one selling personal property in his possession is presumed in law to warrant the title thereof, yet this possession must be that of the owner or one who sells as owner or one who sells the property as his own. If, then, the jury shall believe from the evidence and all the facts in this controversy that -Irwin, Allen & Co., when they sold the seventeen cattle to Thompson, Payne & Co., had possession thereof as agents for W. H. Moreland and sold the same as agents of said Moreland, and that Thompson, Payne & Co., with the full knowledge that Irwin, Allen & Co. were selling the cattle as such agents and not as principals, then the jury will find for the defendants, unless they find that the cattle were stolen.”
The court also, of its own motion, gave the following instruction: “If plaintiffs purchased the cattle not on their own account, but for Clark, then plaintiffs can not recover in this action 5 but if they purchased them for themselves, although to fill an order for Clark, then plaintiffs are the proper parties plaintiff in this suit and entitled to a verdict, if, under the other instructions, you find the facts which entitle plaintiffs to recover.”
It is thus seen that the controlling questions were not,-whether under the law, pleadings and evidence there had been a warranty of title by the defendants, and whether or not the title had failed, but lohy it had
Is this the law? If so, then the judgment of the circuit court should be affirmed. If it is not, then there arises the further questions: First, is the decision of this court on the former appeal conclusive of this point, at least as far as this case is concerned; and, second, if it is not, are the defendants precluded from raising the question by reason of instruction number 10, given at their request?
If the agent agrees to become personally liable with the principal, as in the case of Schell v. Stephens above cited, then the action must be based on an express and not an implied warranty.
If the purchaser wishes to rely on the credit and solvency of the agent, and to deal with him as the principal, then, with the agent’s consent, he can do so, and the agent will be liable as principal. This was the case in Sprague v. Rosenbaum, 38 Fed. Rep. 386. The court states that: “the general rule is that an agent who sells property as such for his known principal is not personally liable on the contract, the presumption being that the purchaser gives credit to the principal
If the fact that the cattle had been stolen made it immaterial whether or not the defendants sold as principals or agents, then no question of agency could arise and there would be no such question to submit to the jury. In fact instruction number 2, given at plaintiffs’ request, did take from the jury the question as to whether or not defendants made the sale in this case as principals or as agents, if the cattle had been stolen.
I am of the opinion that the decision of the supreme court in Huston v. Tyler, 140 Mo. 252, does hold that the question of agency is the material one in such a case. It is said in that ease, on page 266: “But in this case there is no charge made that defendant was the seller of the note, and if he was, and disclosed his agency, etc., he would not impliedly warrant the genuineness or value of the paper which he transferred by
III. Are the defendants precluded, by reason of instruction number 10 given at their request, from asserting in this court that the controlling question on this branch of the case is: “did the title fail?” and not wlvy it failed?
It is clear that if money is paid to a known agent who pays it to his principal, then the principal alone is responsible for it. And again, the plaintiffs bore no such relation to John Stack in this transaction, as that they could be subrogated to any rights he had. As to him, they were wrongdoers equally with defendants and Clark. Moreover, it has never been held that because there is but “one form of action in this state” a plaintiff can recover on a different cause of action than the one stated in his petition. It is said in Huston v. Tyler, supra: “That though our ■code speaks of every suit brought thereunder as a
Plaintiffs allege in their petition as their cause of action a breach of warranty of title to certain personal property by defendants, an entirely different one than a suit for money had and received. Again, their suit is one at law pure and simple, while an action of subrogation is wholly an equitable proceeding. To permit a recovery on such grounds would tend to boundless confusion both in pleadings and practice. But, as above stated, plaintiffs in an action for money had and received would have no greater rights than under the present one, and as between common wrongdoers, no right of subrogation exists. Of course by wrongdoers as used herein, is not meant that there was any moral obliquity on the part of either the plaintiffs or the defendants. Each acted innocently and with entirely good faith, but legally they were all wrongdoers as to John Stack. .
The circuit court properly admitted all the evidence offered bearing on the question as to whether the-defendants .sold the property as agents of Moreland, and whether this was known at the time to the plaintiffs. It would be well for all concerned if this prolonged litigation could be brought to an end; but the foregoing questions of fact are for a jury to decide, and therefore the judgment is reversed and the cause remanded for a new trial.