Graves v. Horton

• Court: Supreme Court of Minnesota (US)
• Citation: 38 Minn. 66
• Parties: FRANK E. GRAVES <I>vs.</I> JENNIE L. HORTON.
• Decision Date: 23 December 1887

Page 66

38 Minn. 66 FRANK E. GRAVES
vs.
JENNIE L. HORTON. Supreme Court of Minnesota. December 23, 1887.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Lochren, J., and a jury, and plaintiff had a verdict. The defendant moved for a new trial on the ground that the verdict was not justified by the evidence, and the motion was denied.

In addition to the facts recited in the opinion, it appeared from the testimony of the plaintiff that he purchased the property in question from the defendant, in Minneapolis, in January, 1886, receiving a bill of sale; that he did not think he could do anything with the property at the time, and did not go down to Spirit Lake, where the property was situated, till May, 1886, when he was handed a telegram by T. V. Horton, which had been received from Spirit Lake, and stated that McCurdy was tearing down the rink; that the telegram was a month old when handed to him, and that when he reached Spirit Lake he could not find the property, and found that the buildings, in which it was supposed to be, had been moved away. McCurdy testified that he purchased the property in question from the defendant through F. M. Horton, as her agent; that he took possession of it and disposed of it, (refusing to state what disposition he made of it,) and that, as a part of the consideration on his purchase, he conveyed 80 acres of land in Iowa, the conveyance being made to Caroline W. Horton (wife of F. M. Horton) under F. M. Horton's instructions.

Page 67

Smith & Reed, for appellant.

C. H. Childs, for respondent.

MITCHELL, J.

This action was brought to recover the value of certain property, which plaintiff had exchanged with defendant for a skating rink, skates, boats, etc., situated at Spirit Lake, Iowa. Plaintiff's claim is that there was an entire failure of title to this property, because defendant had previously sold it to one McCurdy. It is not claimed that defendant had personally sold it to McCurdy, whatever was done in that regard having been done by one F. M. Horton, assuming to act as her agent. Hence, unless F. M. Horton had authority as defendant's agent to sell to McCurdy, there could have been no such sale, and plaintiff has no cause of action. The burden was on plaintiff to prove such agency.

It is axiomatic in the law of agency that no one can become the agent of another except by the will of the principal, either expressed or implied from...