King v. Farmers' Grain Co. of Dawson
| Decision Date | 23 June 1922 |
| Docket Number | 34306 |
| Citation | 188 N.W. 720,194 Iowa 979 |
| Parties | JAMES KING, Appellee, v. FARMERS GRAIN COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 15, 1922.
Appeal from Dallas District Court.--H. S. DUGAN, Judge.
ACTION at law, to recover damages for the breach of an alleged oral contract for the sale of corn. Verdict of the jury and judgment for plaintiff. The defendant appeals.
Reversed.
Harry Wifvat and William H. Winegar, for appellant.
George J. Dugan and White & Clarke, for appellee.
The plaintiff alleged in his petition that, on or about June 15, 1920, he entered into an oral contract with the defendant for the sale of 6,500 bushels of corn, and that, some time later, the defendant's agent paid him $ 100 on the contract. The defendant, after admitting that it is a corporation, denied the allegations of plaintiff's petition, and averred that the contract sued upon is within the statute of frauds and void, and set up other and further defenses, which, in view of the conclusion reached upon the other questions, it is unnecessary to state.
At the time the alleged oral contract was entered into, plaintiff owned 2,400 bushels of corn, John Shoemaker, his landlord, a like amount, and Chester King, his brother, about 2,000 bushels of corn. Plaintiff claims, and the evidence shows, that he was authorized by Shoemaker and by his brother to sell their corn to appellant for them. The sale was made in the name of appellee, without disclosing the fact that he was acting as agent for Shoemaker and his brother, and that a portion of the corn belonged to them. Appellee does not claim to have purchased the corn of either principal, nor that he contemplated doing so. The sale, although made in his name, was for the separate benefit of himself, Shoemaker, and his brother. No part of the purchase price was paid at the time the contract was entered into, but about a month later, appellant paid appellee $ 100 by check on the Dawson Savings Bank. Some claim is made by counsel for appellant that no valid contract of sale was entered into, and that the evidence fails to show that the payment of $ 100 was intended to apply on the contract. These questions were properly submitted to the jury, which found in favor of plaintiff.
The court instructed the jury that, if plaintiff was entitled to recover at all, the measure of his recovery was the difference between the contract price of $ 1.75 per bushels for 6,500 bushels of corn and the market price at which he could have sold same with reasonable effort, after he was notified by defendant that it would not accept the delivery of the corn. Proper timely exception was taken to this instruction.
Plaintiff, in the transaction in question, acted in a dual capacity: that is, for himself, and as agent for Shoemaker and his brother separately. The corn of plaintiff and Shoemaker was on the farm occupied by the former, while that owned by Chester was on another farm, about one-half mile distant. The corn was owned, in the quantity stated, separately by the plaintiff and his principals. They had no joint interest therein. Plaintiff did not intend to engage in speculation, at the time he sold the corn, nor does he claim to have had 6,500 bushels of his own for sale. Both Shoemaker and Chester King were examined as witnesses on behalf of plaintiff, and testified that they authorized plaintiff to sell their corn, and that they were ready and willing to deliver the same to appellant, in fulfillment of the contract entered into by plaintiff on their behalf. It is obvious, therefore, that plaintiff did not, by any transaction with either Shoemaker or King, become the owner of the corn in their possession, nor did he engage to deliver the same for them to appellant, or in any way bind them to make such delivery. His agency, under the testimony, was limited strictly to the sale of the corn. Plaintiff was not in a position to compel either Shoemaker or his brother to deliver their corn to appellant upon the contract made by him. The market price of corn greatly declined, and, as would be quite natural, Shoemaker and King were willing to deliver their part of the corn. Subject to certain exceptions not present in this case, the agent who sells the property of his principal in his own name may maintain an action upon the contract for the benefit of his principals. Brown v. Sharkey, 93 Iowa 157, 61 N.W. 364; Gooden v. Rayl, 85 Iowa 592, 52 N.W. 506; Knott v. Dubuque & S. C. R. Co., 84 Iowa 462, 51 N.W. 57; Moorehead v. Hyde & Braden, 38 Iowa 382; Wells v. Western Union Tel. Co., 144 Iowa 605, 123 N.W. 371; Smith & Son v. Bloom, 159 Iowa 592, 141 N.W. 32; Code Section 3459.
Likewise, it is ordinarily true, and under the facts of this case is true, that, notwithstanding the fact that the contract may have been entered into on behalf of the principal in the name of the agent, an action may be brought thereon, or for a breach thereof by the principal in his own name. Shields v. Coyne, 148 Iowa 313, 127 N.W. 63; Wells v. Western Union Tel. Co., supra.
Whether, however, the action be prosecuted in the name of the agent for the benefit of the principal, or by the principal in his own name, there can be no recovery in favor of either, if the contract is not enforceable because within the statute of frauds. It is conceded that no part of the corn was delivered or actually received by appellant; that no note or memorandum in writing was signed by the party to be charged, or by the agent thereof; and that no part of the purchase price was paid for a month after the terms of the contract were agreed upon. Subdivision 1 of Section 4625 of the Code was repealed by Chapter 396 of the Acts of the Thirty-eighth General Assembly, commonly known as the Uniform Sales Act, and Section 4, Subdivisions (1) and (2), of said chapter was enacted in lieu thereof. Said subdivisions are as follows:
Concerning the $ 100 payment which was made by check payable to plaintiff, upon the Dawson Savings Bank, the evidence on behalf of plaintiff showed that he, in company with his brother, went to the office of appellant and requested an advance payment on the contract. Appellant's agent at first declined this request. Plaintiff thereupon informed the agent that he was hard up; that he had some men working for him who wanted their wages paid; and that he needed some money. He asked for a payment of $ 100. Appellant's agent then gave him the check for $ 100. This payment is the sole reliance of appellee to take the case out of the statute of frauds. Plaintiff did not, at the time of making the contract, disclose that he was acting as the agent of Shoemaker and King in the sale of the larger part of the quantity agreed upon, nor was this fact known to appellant's agent at the time of the $ 100 payment. No claim is made by anyone that any part of the $ 100 payment was intended either by appellant or plaintiff for the benefit of Shoemaker or Chester King. W. E. Chinn, appellant's agent, did not know that plaintiff was the agent of his landlord and of his brother, and the statements made by plaintiff show conclusively that he intended and treated the payment as an advancement upon the purchase price of his own corn, and applied it to his own use. This took the contract out of the statute, so far as he was personally concerned. The corn was owned in severalty, and sold at the agreed price of $ 1.75 per bushel. The contract was, therefore, separable and, unless unenforceable because within the statute, an independent action against appellant for damages could have been maintained by each of the parties. The statute of frauds quoted, supra, provides that, where no part of the property is delivered or purchase price paid, a contract for the sale of personal property is unenforceable, unless a note or memorandum in writing is signed by the party to be charged, or by his agent in his behalf. Had Shoemaker or Chester King commenced separate actions against appellant, to recover damages for the refusal of the latter to accept their corn, would a plea of the statute of frauds have been a good defense thereto? It certainly would, unless the payment made to appellee operated to take the entire transaction out of the statute. We have found no case squarely in point. The Supreme Court of Michigan, in Burhans v. Corey, 17 Mich. 282, is somewhat in point. In that case, the defendant purchased a quantity of wool owned jointly by three parties. The buyer paid $ 30 to one of the owners, without directing that it be divided or prorated among the owners. The buyer refused to...
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