Kearns v. Nicksb

• Decision Date: 05 June 1907
• Citation: 80 Conn. 23,66 A. 779
• Court: Connecticut Supreme Court
• Parties: KEARNS v. NICKSB.

66 A. 779

80 Conn. 23

KEARNS

v. NICKSB.

Supreme Court of Errors of Connecticut.

June 5, 1907.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Replevin by Michael H. Kearns against Herman R. Nickse. Judgment for defendant, and plaintiff appeals. Error, and new trial granted.

Upon the trial it was undisputed that the plaintiff, the owner of a horse, intrusted it to one Pearson for some purpose, that Pearson traded the horse to the defendant in return for another horse and the defendant's check for $28, that the plaintiff subsequently having found the horse in the defendant's possession, and learned the facts of the trade, demanded it, and that the demand was refused. The plaintiff offered evidence to show that the horse was delivered to Pearson for the sole purpose of showing it to one Hills, with a view to a sale to him for $100. The defendant sought to establish that the horse was placed in Pearson's hands for sale generally for $100. There was evidence tending to show that Pearson had dealt more or less in horses to the knowledge of each of the parties, neither of whom, however, were well acquainted with him; that the horse taken by him from the defendant in said trade was the same day sold to one McNamara, who still has it; that Pearson collected said $28 check; that he never accounted to the plaintiff for the proceeds of said trade; and that he has since been in parts unknown to the parties. The plaintiff requested the court to instruct the jury that the power to sell conferred upon an agent in such a case did not clothe the agent with the apparent authority to barter or exchange, and that third parties dealing in the form of barter or exchange with such agents so authorized did so at their own risk. The court charged the jury upon that subject as follows: "The plaintiff claims that he delivered the horse to Pearson for the purpose of having Pearson show the horse to one Hills, with the view of a sale by plaintiff of the horse to Hills for the price of $100, and for no other purpose. The defendant claims, in substance, that plaintiff delivered the horse to Pearson to sell for $100. If the plaintiff's claim is true, then Pearson would have no authority to sell, and the mere intrusting of Pearson with the possession for a special purpose would not clothe him with any real or apparent authority to make the trade with defendant—the mere intrusting of Pearson with the possession. If plaintiff, on the other hand, intrusted the horse to Pearson for sale, the mere fact that his authority to sell was restricted by the plaintiff without knowledge on the part of the defendant to a sale to Hills alone, or to a sale for cash, or at a fixed price, would neither of them...