Fishbaugh v. Spunaugle

• Decision Date: 29 October 1902
• Citation: 92 N.W. 58,118 Iowa 337
• Parties: GEORGE FISHBAUGH, Appellant, v. W. J. SPUNAUGLE, Appellee
• Court: Iowa Supreme Court

92 N.W. 58

118 Iowa 337

GEORGE FISHBAUGH, Appellant, v. W. J. SPUNAUGLE, Appellee

Supreme Court of Iowa, Des Moines

October 29, 1902

Appeal from Page District Court.--HON. O. D. WHEELER, Judge.

ACTION to enforce landlord's lien against a purchaser of grain from the tenant of plaintiff. Judgment for defendant, and plaintiff appeals.

Affirmed.

W. P Ferguson for appellant.

John R Good and H. R. Scott for appellee.

OPINION

WEAVER, J.

Plaintiff by his agent, one Scheibenberger, leased a farm to one Hinsley for the year 1899. Out of the crop of corn raised by him upon the leased premises Hinsley sold a quantity to defendant, who paid him therefor the sum of $ 246.72. This action is brought by the plaintiff as the owner of the land, alleging that the rent has never been paid by Hinsley, that there is due thereon more than the value of the corn received by defendant, that the corn so purchased was subject to a lien for said rent, and asking judgment against the defendant accordingly. The defendant admits the purchase of the corn and payment of the sum mentioned to the tenant, but says that plaintiff's agent, who had charge of the business, stood by, and saw the tenant disposing of the property which secured the rent and collecting payment therefor, and made no objection thereto, whereby the landlord's lien was waived. He further alleges that the corn for which payment is claimed was sold by the tenant with the knowledge and consent of the plaintiff and his agent, and that the defendant therefore took it free of plaintiff's lien. The cause was tried to a jury, which returned a general verdict for the defendant, with answers to special interrogatories as follows: "First. Do you find, from the evidence, that Scheibenberger had any knowledge that Hinsley, was selling to defendant, Spunaugle, any of the corn covered by the lien of plaintiff, Fishbaugh? Answer. Yes. Second. Do you find that Scheibenberger authorized Hinsley to sell or deliver the corn in controversy to defendant, Spunaugle? Answer. Yes. Third. Do you find that defendant, Spunaugle, was induced to purchase from Hinsley the corn in question by knowledge or information of any act, conduct, or representation on the part of Scheibenberger? Answer. No. Fourth. Do you find that Scheibenberger had authority to waive the lease of plaintiff on any part of the crop covered by plaintiff's lien? Answer. No." Plaintiff moved for judgment for the amount of his claim notwithstanding the general verdict, and also moved for a new trial. These motions were denied, and judgment entered on the verdict against plaintiff for costs.

I. It may be conceded, as contended by appellant, that the landlord can enforce his lien against a purchaser from the tenant without notice. Holden v. Cox, 60 Iowa 449, 15 N.W. 269; Blake v. Chas. Counselman & Co., 95 Iowa 219, 63 N.W. 679; Frorer v. Hammer, 99 Iowa 48, 68 N.W. 564. But that question does not seem to be raised in this case. It is admitted that defendant purchased knowing the corn had been raised by a tenant on leased ground, and that he knew the rent was not paid, or at least not paid in full. The position of the defendant is that the lien which the law gave the plaintiff was waived or relinquished by the voluntary act of the plaintiff by his agent, in giving express consent to the sale.

II. It is next said that a consideration must be shown to support a waiver, and that there is none in this case. In the sense in which the general rule is usually quoted, the doctrine contended for is unquestionably right. If, for instance, the property sought to be subjected to plaintiff's claim had never been disposed of by the tenant, and suit had been brought against him to enforce the lien, he could not avoid such enforcement by proving that plaintiff had waived or relinquished his right to such remedy without also showing some consideration for the waiver. If, however, the landlord gives his consent to the sale of the property by the tenant, and the latter, acting upon such consent, makes the sale, the relinquishment becomes effective. A consideration then exists in the fact that the tenant, upon faith of such relinquishment, has bound himself to make a good title to his purchaser. It is elementary that consideration for an undertaking is not necessarily anything which is of advantage or benefit to the party against whom it is asserted, but may consist in something which imposes upon the other a liability or inconvenience which otherwise would not have existed. Townsley v. Sumrall, 27 U.S. 170 (7 L.Ed. 386); Powell v. Brown, 3 Johns. 100; Dorwin v. Smith, 35 Vt. 69; Violett v. Patton, 9 U.S. 142 (3 L.Ed. 61.)

III. Considerable attention is given in argument to the proper meaning and definition of "estoppel," and whether any estoppel is shown against the plaintiff. Without going into that discussion, we think it may be said that there is no evidence in this case upon which an estoppel by conduct can be based. But, in so far as a party may be said to be estopped by his own agreement or express undertaking, we think the evidence presents a case for the jury. There is sufficient testimony to justify the finding that plaintiff's agent gave Hinsley permission to sell, and such authority, subject only to the question next discussed, would be a complete defense to plaintiff's action.

IV. It is said, however, that, if the agent, Scheibenberger, did assume to give such consent, it was beyond the scope of his authority, and not binding upon the plaintiff. We think this contention is not sustained by the record. It is true, Scheibenberger swears in a general way that he was not authorized to waive or release plaintiff's lien on any of the property; but it further appears from his own statement that he was transacting plaintiff's business in reference to the farm, renting it, collecting rents, superintending and directing repairs, authorizing the tenant to sell corn for the payment of taxes and purchase of fencing, and in other ways indicating clearly the very general scope of his duties in reference to his employment. This presents a proper case for the consideration of the jury, and a finding that the agency was general is not without support. Nicholson v. Golden, 27 Mo.App. 132. To be a "general" agent, or to be clothed with "general" authority, as that word is used in law, means no more than to have general authority in reference to a particular business or employment (Story, Agency, section 17); and certainly, under that definition, the authority exercised by the agent in leasing the land and supervising the farm and tenant appears to have been as broad and general as it could well have been made. He says in his testimony: "I was his [plaintiff's] agent in renting the farm * * * Was his agent under the lease to control the farm during 1899 and up to the present time. Transacted all business in relation to collection of rent. * * * Did not exceed authority in what I did. * * * Did instruct Hinsley to sell one load of corn to Gwynn, and 200 bushels to Maxwell. * * * I had general supervision of the farm under his [plaintiff's] instructions, and the renting and looking after it. * * * Had no authority to do anything prejudicial to Fishbaugh's interest. Had authority to do anything that was beneficial to him." Under these statements, although he elsewhere states, more as a legal conclusion than otherwise, that he had no authority to waive the lien, the verdict of the jury in this respect cannot be disturbed. It is to be observed, also, that the plaintiff himself does not testify, and in no manner explains or rebuts the apparent authority of his agent. It is very likely true that the plaintiff never told Scheibenberger in so many words that he might waive or release the landlord's lien, but the giving of authority, express or implied to permit the tenant to market the corn, would have that legal effect. It is a settled doctrine that the principal is bound not only by acts of his agent within the express limit of his instructions, but is also bound to the extent of the apparent authority conferred upon such agent; and this is true with reference to special agents as well as general agents. Howell v. Graff, 25 Neb. 130 (41 N.W. 142); 1 Am. & Eng Enc. Law (2d Ed.) 986-989. This rule is applicable even against private instructions limiting the agent's power, where such limitations are not brought to the notice of the parties with whom the agent deals. City of Davenport v. Peoria Marine & Fire Ins. Co., 17 Iowa 276; Bryant v. Moore, 26 Me. 84, (45 Am. Dec. 96); Hatch v. Taylor, 10 N.H. 538. The aptness of these rules to the present case is apparent when we find from the record that the agent did have and exercise the authority to permit the tenant to market at least 200 bushels of the corn raised on the leased premises. This had the effect to bring the power to release the landlord's lien (as to part of the property, at least) within the scope of the agency, and, if the agent allowed the marketing of a greater number of bushels than his instructions contemplated, such act will bind the plaintiff as against the tenant, and the purchaser not having notice of such limitation. Murphy v. Ins. Co. (Tenn.) 27 Am. Rep. 761); Burner Co. v. Odlin, 51 N.H. 56 (12 Am. St. Rep. 45); Walker v. Skipwith (Tenn.) 33 Am. Dec. 161; Story, Agency, section 443; Ruggles v. Insurance Co. (N. Y.) 11 Am. St. Rep. 674, and note (s. c. 21 N.E. 1,000).

V. Perhaps the most important point made by the appellant is upon the effect to be given to the fourth special finding by the jury, which answers in the negative the question whether "Scheibenberger had authority to waive the lease of plaintiff on any part of the crop covered by plaintiff's lien." It is said that this is fatal to the...