SIOUX CITY NURSERY & SEED CO. v. MAGNUS.

27 P. 257

1 Colo.App. 45

SIOUX CITY NURSERY & SEED CO.
v.
MAGNUS.

Court of Appeals of Colorado

July 7, 1891

Appeal
from Arapahoe county court; GEORGE W. MILLER, Judge.

H.B.
Johnson, for appellant.

Browne,
Putnam & Preston, for appellee.

RICHMOND,
P.J.

The
action in this case was originally commenced before a justice
of the peace of Arapahoe county, and from the summons issued
the character of the suit appears to be in the nature of a
money demand for a sum not exceeding $300. The cause was
appealed to the county court. Trial was there had, and
judgment rendered against appellant for the sum of $200. To
reverse this judgment this appeal is prosecuted. The facts
out of which the action arose, as they appear from the
record, are that on the 21st and 28th of January, 1889, at
the solicitation of one Wheeler, an agent of the defendant,
the Sioux City Nursery & Seed Company, Peter Magnus made two
orders on said company for a certain amount of nursery stock.
At the time of making the orders, Wheeler received from
plaintiff two horses in full payment of $200 worth of nursery
stock mentioned in the order. Thereafter the appellant
shipped the stock to Denver, and offered to deliver the same,
if paid for, refusing to recognize the action of its agent in
taking the horses in payment for the nursery stock. The
testimony shows that the agent took the horses, giving [1
Colo.App. 46] a receipt for their value, and thereafter
appropriated them to his own use, concealing the transaction
from the company. This action is therefore brought by
plaintiff, Magnus, against the company to recover for the
value of these horses so alleged to have been delivered to
the agent in payment for the nursery stock which the company
refused to deliver, and for the additional sum of $100
mentioned in a certain order of Wheeler upon the company to
be paid to Magnus out
[27 P. 258.]
of his commissions when the nursery stock so ordered should
be delivered. The order given by Magnus is in the following
words: "I, Peter Magnus, this day bought of E.A.
Wheeler, agent, the following bill of trees, vines, plants,
etc., to be delivered in good order from the Sioux City
Nursery and Seed Company, Sioux City, Iowa: [Here follows the
enumerated stock, with prices.] Shipped from Denver. To be
delivered at Littleton, Colorado, in the spring of 1889, for
which I agree to pay $150 in cash on the day of delivery.
Notice to be sent of the day of delivery. Should I not call
for the goods on the day of delivery, I agree to pay expense
of delivering stock to my place. No countermand accepted. If
not settled for on delivery, payment shall be due at Sioux
City, Iowa. [ Signed] PETER MAGNUS. Dated January 21st,
1889." The receipt given by Wheeler reads as follows:
"Received of Peter Magnus two bay mares, about 3 and 4
years old, branded M on left thigh, in full payment for two
bills of nursery stock, one bill for $150 and the other for
$50, bought of the undersigned. E.A. WHEELER."

The
contention of plaintiff is that this agent had authority,
express or implied, to make this sale and accept payment. The
testimony on the part of the defendant company is to the
effect that no such authority existed, and that the agent was
not authorized to accept payment, even in cash. A careful
review of the transcript and abstract leads us to the
conclusion [1 Colo.App. 47] that it is wholly unnecessary for
us to determine whether or not the agent was authorized, by
implication or otherwise, to collect the money. The fact
exists that he did not collect money, but made a bargain to
take in exchange for the stock the two horses. This is shown
in Wheeler's receipt. The general principle is that
payment to the agent must be made in money, in the absence of
express authority to him to receive payment in something else
than money. Drain v. Doggett, 41 Iowa 682; Manufacturing Co.
v. Givan, 65 Mo. 89; Kendall v. Wade, 5 La.Ann. 157; Burger
v. Limbach, 42 Mich. 162, 3 N.W. 942; Broughton v. Silloway,
114 Mass. 71; Lumpkin v. Wilson, 5 Heisk. 555; Organ Co. v.
Starkey, 59 N.H. 142. And, even in cases where it has been
decided that a general agent to collect and settle debts may
receive property in payment, it nevertheless is held that
such an agent cannot buy property of the debtor and thereby
create a debt against his principal. This transaction, it
seems to us, is fully covered by the principles above cited.
Here was a general agent, with power to sell, sent out by his
principal to take orders for stock to be delivered at a
future time. The stock was not intrusted to his care or
possession, and at the time of taking the order he assumed
the right to exchange it for horses, and thereby bind his
principal. He took the horses, executed the receipt above set
forth, and reports to his company, transmitting the orders,
to the effect that, upon delivery, the stock so ordered will
be paid for in cash. The company, wholly ignorant of the
transaction, relying implicitly upon the representations of
the agent, prepare the stock, ship it to Colorado, and made
offer to deliver upon payment in cash. Magnus declined to
pay, and insisted that he was not only entitled to receive
the stock mentioned in the orders, but was entitled to credit
as payment for the value of the horses, as set forth in the
receipt of Wheeler, and for the additional sum of $100
mentioned in the order. [1 Colo.App. 48] We have examined
with considerable care every authority cited in the briefs of
appellant and appellee, and can unhesitatingly say that we
are unable to find a single authority supporting this
contention of appellee. Greenhood v. Keator, 9 Ill.App. 183;
Kane v. Barstow, 42 Kan. 465, 22 P. 588; Butler v. Dorman, 68
Mo. 298; Law v. Stokes, 32 N.J.Law, 249; Clark v. Smith, 88
Ill. 298; Seiple v. Irwin, 30 Pa.St. 513. The fact does
appear in the record that a former agent of the defendant
company named Brownlee introduced Wheeler to plaintiff
Magnus, and represented that he had the same authority which
the company had conferred upon him a year or more previous,
with whom Magnus had dealt, and to whom he had paid money
upon delivery. There are other circumstances disclosed in the
record which appellee insists tends to establish the
authority of this agent to receive payment in full. For the
purposes of this case we might readily concede the position
taken by appellee, but, under the authorities and the facts
disclosed by the record, we are not prepared to announce that
the plaintiff has a right of recovery against the defendant
company for the value of the horses bartered by the agent in
exchange for the company's stock. It certainly seems as
though the plaintiff ought to have known that the agent of
the company was exceeding his authority when he undertook to
make this trade. The judgment of the court must be reversed.