Great Western Elevator Co. v. White

• Decision Date: 20 October 1902
• Docket Number: 1,782.
• Parties: GREAT WESTERN ELEVATOR CO. v. WHITE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

118 F. 406

GREAT WESTERN ELEVATOR CO. v. WHITE et al.

No. 1,782.

United States Court of Appeals, Eighth Circuit.

October 20, 1902

D. G Maclay (W. F. Ball and J. S. Watson, on the brief), for plaintiff in error.

V. R Lovell (John D. Benton and Daniel B. Hold, on the brief), for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and RINER, District judge.

RINER District Judge.

This was an action brought by the Great Western Elevator Company plaintiff in error, against William H. White and William H White Lumber Company, defendants in error, to recover the sum of $2,100, the amount paid on three drafts drawn by William Clemens, the agent of the plaintiff in error in charge of its business at Leonard, in the state of North Dakota, in favor of the defendant William H. White. The facts, as disclosed by the pleadings and the evidence, show that at all the times between August 1, 1900, and November 1, 1900, one William Clemens was in the employ of the plaintiff in error as its agent and grain buyer at the town of Leonard, N.D., and that during the same time he was in the employ of the William H. White Lumber Company, one of the defendants in error, in charge of its lumber yard and lumber business at Leonard, that, as agent and grain buyer for the plaintiff in error, it was necessary for Clemens, from time to time, to have and handle large sums of money, in the form of currency, wherewith to pay for grain purchased for the plaintiff in error, and delivered at its elevator and warehouse in Leonard; that the money used by Clemens in conducting the business of the plaintiff in error was furnished to him by the company, sometimes by shipments of currency from its home office, located at Minneapolis, Minn., and sometimes by Clemens drawing drafts on the company, and procuring the currency on these drafts by selling them to persons, companies, or corporations at or in the vicinity of Leonard, which drafts the elevator company paid in due course when the same were presented at the bank at which it did business in Minneapolis; that in conducting its business the elevator company was in the habit of furnishing Clemens with blank forms of drafts, drawn on the plaintiff at Minneapolis, with the word 'Agent' printed under the line upon which the agent making use of the blank was to write his name as drawer; that he was to use these drafts in obtaining currency by filling the same out as to the name of the payee, the date upon which the draft was drawn, and the amount for which drawn. He was then to negotiate and sell the draft to such person, company, or corporation as would furnish to him, for the use of the elevator company in its said business at Leonard, the sum of money for which the draft was drawn. The drafts in suit were drawn, one on August 23, 1900, for $500; one on September 19, 1900, for $700; and one on October 25, 1900, for $900. The first draft, for $500, was paid on August 25, 1900; the second, for $700, on September 20, 1900; and the third, for $900, on October 26, 1900.

Four causes of action are set out in the complaint, but it will only be necessary for us to notice particularly the first cause of action, as the other causes of action proceed upon the same ground; the only difference being in the amount, each draft being set out in a different cause of action. In the first cause of action it is alleged, in substance, that Clemens, as agent of the elevator company, drew the draft therein described, for $500, in favor of the defendant William H. White, who the record shows was president of the William H. White Lumber Company; that the draft was duly presented to the elevator company for payment, and supposing the amount therein named had been paid to Clemens, its agent, for the purpose of carrying on its business at Leonard, it paid the same. The complaint then proceeds:

'That in truth and in fact the said defendants did not, not did either of them, as plaintiff is now informed and verily believes to be the fact, pay to the said William Clemens, for the use of plaintiff, said sum of five hundred dollars ($500), or any other sum or amount whatever.'

And further, upon information and belief:

'That upon making the transaction aforesaid, defendants, and each of them, well knew that no consideration passed from the, or either of them, to the plaintiff, for five hundred dollars ($500), which they received upon said draft; that in making such transaction they were in fact receiving, and did in fact receive, from the plaintiff herein, the sum of five hundred dollars ($500), without having paid plaintiff any consideration whatever therefor.'

And further, upon information and belief:

'That the said William Clemens was on the date of such transaction, namely, August 23, 1900, largely indebted to the defendants, as their agent or otherwise, and that defendants, for the purpose of securing payment, in whole or in part, of the indebtedness aforesaid, from the said William Clemens, received and accepted from him the said draft, and thereafter obtained upon said draft the sum of $500 from the said plaintiff, and that defendants well knew that the money so obtained by them in such transaction was not the money or the property of the said William Clemens, and further knew that the said William Clemens, as agent of plaintiff, had neither right nor authority to make drafts upon plaintiff, to be used for the purpose for which said draft was so used; that the said William Clemens, in so drawing said draft and delivering the same to the defendants, exceeded the power and authority vested in him in respect thereto, and in drawing said draft wholly exceeded the scope of the authority vested in him as such agent for the plaintiff.'

The answer admits the drawing of the draft for $500 on the 23d day of August, 1900; that one of the defendants was named therein as payee, and that the draft was delivered to the...