Cronquist v. Smith
| Decision Date | 08 May 1913 |
| Docket Number | 2460 |
| Citation | 42 Utah 575,133 P. 130 |
| Court | Utah Supreme Court |
| Parties | CRONQUIST et al. v. SMITH et al |
APPEAL from District Court, First District; Hon. W. W. Maughan Judge.
Action by Olof Cronquist and James Adams against W. H. Smith and David Andrew.
Judgment for plaintiff. Defendant Smith appeals.
REVERSED AND REMANDED.
George Q. Rich for appellant.
A. A Law for respondent.
This is an action to recover the value of alfalfa seed alleged to have been sold and delivered to the defendants. The case was tried to the court and a jury. The plaintiffs had judgment, from which the defendant Smith has appealed.
It is conceded that the seed was not sold directly to Smith and that his liability is wholly dependent upon proof of agency between him and the defendant Andrew; the plaintiffs contending in this respect that Andrew was the agent of Smith, and as such purchased the seed for him. The assignments in such particulars present questions of the sufficiency of the evidence, the admission of testimony over Smith's objections, and the charge.
The evidence shows Smith was in the employ of the W. O. K Elevator Company at Smithfield, Cache County, and was one of its purchasing agents in buying farm products, including alfalfa seed. The company there maintained a storage plant for seed and a storage warehouse. About three weeks before the time in question Andrew approached Smith at the warehouse and told him that they (Smith and the company) were paying too much for alfalfa seed and that he believed "he could make some money buying seed and selling it to you fellows." Smith told him, "All right, just so that the seed equals the condition that we are buying right here every day, we will take all there is left in Cache Valley--it don't make any difference whether it is by you or through a firm or anybody else--and receive it here at our warehouse." Andrew inquired and was told the price that would be paid, providing the seed came up to samples then exhibited to him, one price for first-class and another for second-class seed. About three weeks after that Andrew, by wagon, brought to the warehouse alfalfa seed which he had purchased from the plaintiffs and from one Mr. Watkins, in Cache Valley. The seed was in different sacks. Smith examined it and found portions of it, that purchased from the plaintiffs, of an inferior quality, "nothing but tailings," and declined to buy it and told Andrew to take it away. Andrew then informed him that he had given the plaintiffs and Watkins checks and had signed Smith's name to them for the purchase price of the seeds. Smith at once took him to task for that, told him that he had no authority to give checks, and that they would not be honored. Smith immediately telephoned the plaintiffs and Watkins that Andrew had no authority to give the checks; that they would not be honored; and that payment on them would be stopped, which was done. He, however, told Watkins that the company would buy the seed which he had delivered to Andrew but would give the company's check for it. That was agreeable to Watkins and the matter was fixed up with him that way. Smith, in telephoning the plaintiffs, told them that the company would not buy their seed because of its inferior quality and requested them to come to the warehouse, inspect the seed, and take it way, and "straighten the matter out." This the plaintiffs declined to do and stated that they had nothing "to fix up." Andrew left the seed at the warehouse and went away. Smith thereupon had it placed in the warehouse for safe-keeping and held it in the sacks as it came to the warehouse, subject to the orders of the plaintiffs, and so informed them. Later the plaintiffs saw Smith at the warehouse. They asked him if Andrew was not his agent and stated that they thought he was because he had signed his name to...
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