Graves v. Horton

• Decision Date: 23 December 1887
• Citation: 35 N.W. 568,38 Minn. 66
• Parties: GRAVES v HORTON.
• Court: Minnesota Supreme Court

38 Minn. 66

35 N.W. 568

GRAVESvHORTON.

Supreme Court of Minnesota.

December 23, 1887.

(Syllabus by the Court.)

Evidence held insufficient to sustain the verdict.

The fact that in a particular instance a person was authorized by the owner of property to negotiate a sale of it to one person on certain terms, the actual transfer to be made by the owner personally, is not sufficient to prove authority in such person to sell and transfer the same property at a prior time and on different terms to another and different person.

Agency cannot be proved by general reputation.

Appeal from district court, Hennepin county; LOCHREN, Judge.

C. H. Childs, for Graves, respondent.

Smith & Reed, for Jennie L. Horton, appellant.

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 particular circumstances; that an agent cannot create in himself an authority to do a particular act by its performance, and that the authority of an agent cannot be proved by his own statement that he is such. Applying these elementary principles, and stripping the evidence of all that is immaterial or incompetent, and giving to what remains all the force that can be claimed for it, all there is that was brought home to defendant tending to prove any such agency is that, when F. M. Horton was in Spirit Lake, he transmitted and submitted to her in Minneapolis what purported to be a proposition from McCurdy to give for this property $1,090 in goods, and assume a mortgage on it for $385, and that she agreed to accept this proposition; that McCurdy, being unable to carry this out, F. M. Horton submitted to her another proposition, as coming from McCurdy, viz., to give in place of the goods 80 acres of land in Iowa; that defendant declined to accept this last proposition, and so notified McCurdy; that about two weeks after this she authorized F. M. Horton to negotiate the sale of this property to plaintiff on the terms which were finally agreed on, she herself making the transfer by executing the bill of sale described in the complaint. We have, on the other hand, the flat denials of both plaintiff and F. M. Horton, that he ever had any authority from her to sell this property or ever was her agent for this or any other purpose.

This is really all the competent evidence...