Mapes v. Foster

• Decision Date: 10 April 1928
• Docket Number: 1433
• Parties: MAPES v. FOSTER, ET AL. [*]
• Court: Wyoming Supreme Court

266 P. 109

38 Wyo. 244

MAPES v. FOSTER, ET AL. ^[*]

No. 1433

Supreme Court of Wyoming

April 10, 1928

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Suit by H. Mapes against Edwin B. Foster and another. Judgment for plaintiff against defendant Foster and against plaintiff in favor of the Southern Surety Company, and plaintiff brings error.

Reversed.

Curran & Cobb, for plaintiff in error.

The action was instituted under Chap. 31, L. 1921; plaintiff in error was entitled to a joint and several judgment against defendants in error under the evidence; the court below erred in striking and refusing portions of the evidence. The license Act is constitutional, Freund, Police Power, 40; State v. Harrington, 68 Vt. 622, 34 L.R.A. 100; Ex parte Frank, 52 Cal. 606; People v. Dairy Co., (N Y.) 119 N.E. 118; Coffman v. Sterhous, (N. D.) 168 N.W. 826; Riley v. Chambers, 8 A. L. R. 418. The sale of the homestead relinquishment is in effect the sale of an interest in realty, 4536 U.S. Comp. Stats. 1916; Pelham v. Service, (Kans.) 26 P. 29; Sutherland v. Richardson, (Ore.) 106 P. 1017; Fain v U.S., 209 F. 525; Keane v. Brygger, 160 U.S 276; it is the only way an entryman can dispose of his right in the land, Gourley v. Countryman, (Okla.) 90 P. 427; Moss v. Dowman, 44 L.Ed. 526; McClung v. Penny, 47 L.Ed. 751; the money paid by plaintiff was converted by defendant Foster to his own use, and his bond was thereby violated, Remington v. Co., (Wash.) 67 P. 989; Fairmont Co. v. Davison, (Minn.) Ann. Cas. 1914 D, 947; Chap. 31, L. 1921; the motion for judgment was limited to a special purpose; the Surety Company is limited to the ground of the motion, Peters v. Peters, 215 P. 128; motions for non-suit, demurrers to evidence and motions for judgment are synonymous, Ringgold v. Haven, 1 Cal. 108; Hall Co. v. Barquin, 33 Wyo. 92. The movant must stand on the ground stated in his motion.

W. E. Clark, and D. W. Ogilbee, for defendant in error, Southern Surety Company.

The action being statutory, plaintiff must bring himself within the terms of the statute, Chap. 31, L. 1921; the petition failed to state a cause of action against the Surety Company; it was shown that Foster was acting for himself and that the transaction was not governed by the statute, Chunes v. Railway Co., 292 F. 153; Foster was not acting as a real estate agent and his acts were not within the conditions of the bond; agency cannot be established by declarations of one that he is an agent, Cheesman v. Nicholl, 18 Colo.App. 174; the burden of proving agency rests upon the party affirming its existence, 31 Cyc. 1643. The motion of the Surety Co. for judgment was properly granted and the judgment should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

H. Mapes brought suit in the District Court of Natrona County against Edwin B. Foster and Southern Surety Company to recover upon a bond given by Foster as real estate agent, under the provisions of Chapter 31, Laws of 1921. Judgment was entered against Foster in favor of Mapes, but against Mapes and in favor of Southern Surety Company. From this judgment, the cause is brought to this court by proceedings in error for review. The parties will be referred to hereinafter either as plaintiff and defendants, or by their respective names.

The first three paragraphs of plaintiff's petition allege, in substance, the plaintiff's residence in Casper, as a citizen of the state; that the defendant Foster was also a citizen of Wyoming, residing in that city, and engaged in the general business of real estate "with the right to conduct and transact such business in the state of Wyoming as provided in Section 1, Chapter 31 of the 1921 Session Laws of Wyoming, and that he has been so engaged at all the dates and times hereinafter mentioned;" that the defendant Southern Surety Company is a corporation organized and existing under the laws of the State of Iowa, authorized to transact business in Wyoming. It is then alleged that on or about August 28, 1923, plaintiff purchased through defendant Foster, "then acting for and in behalf of parties unknown to this plaintiff," certain described real property, paying therefor the sum of $ 580; that Foster failed and neglected to put plaintiff in possession of this property or to deliver title thereof--the said title "to be delivered by the relinquishment of certain homestead rights;" that said relinquishment could not be obtained for the reason that neither the defendant Foster nor the party through whom he had or claimed agency had any right or interest in the same; that the said property had been homesteaded by one Allison Pinney, then deceased, and thereafter re-entered by his widow, Emma Pinney; that demand both of possession and title, and also of the funds entrusted to him, was made on Foster by plaintiff, but plaintiff has received nothing. The sixth paragraph of the petition sets out that pursuant to Chapter 31 of the Session Laws of Wyoming 1921, defendant Foster gave a bond and procured renewals thereof, executed by himself, as principal, and the defendant, Southern Surety Company, as surety, in the sum of $ 1,000, guaranteeing the faithful accounting for all funds entrusted to him. The bond and renewals are set out verbatim. Omitting the penal clause and that providing for yearly renewals, said bond reads:

"THE CONDITION OF THIS BOND IS SUCH That Whereas, the above bounden Principal Edwin B. Foster has applied to THE STATE IMMIGRATION COMMISSIONER OF THE STATE OF WYOMING, for a license authorizing him to engage in the business of a Real Estate Agent for the period ending December 31, 1921, and is required by law to file a bond to the State of Wyoming, for the use and benefit of all persons, who may be damaged by the wrongful conversion of any trust funds held by such Real Estate Agent;

"NOW, THEREFORE, the Condition of this obligation is such, that if the aforesaid Edwin B. Foster shall well and truly and faithfully account for all funds entrusted to him in his capacity as Real Estate Agent from this date up to and including December 31, 1921, then this obligation to be void, otherwise to remain in full force and effect."

The seventh paragraph of the petition alleges "that plaintiff entrusted with the defendant, Edwin B. Foster, on the 28th day of August, 1923, the sum of $ 580, for the sale and purchase of said homestead relinquishment of the real property herein described, and that the said Edwin B. Foster wrongfully converted said sum to his own use." Judgment is asked in the prayer of the pleading for $ 580, with interest and costs.

The defendant Foster filed a separate answer in which he admitted the allegations of the first three paragraphs of plaintiff's petition, and denied, generally, all other allegations in that pleading. The separate answer of the defendant Southern Surety Company also admitted the allegations of the first three paragraphs above mentioned, averring in connection therewith that Foster was not, at the time of filing the answer, residing in Wyoming. It admits, too, the allegations contained in the sixth paragraph of the petition. Disclaiming any information concerning the conversion of the money entrusted to Foster, the Southern Surety Company pleads as a defense "that the defendant Edwin B. Foster, in and about the transaction complained of in the petition herein, was acting for and on behalf of himself alone, and that the plaintiff at all of the times complained of, had full knowledge of the fact that the defendant Foster was so acting;" that the relinquishment contracted by the plaintiff to be purchased from the defendant Foster, was to be the relinquishment of said Foster in and to the real property described in the petition. The answer also admits that plaintiff paid Foster the sum of $ 580, on or about the date alleged, but "avers that the same was paid on account of the relinquishment contracted to be purchased from the defendant Foster, personally, and not as the agent or representative of any other person." Then follows a paragraph which sets out a general demurrer to the petition. To this answer of the Surety Company a reply was filed on behalf of the plaintiff, in form a general denial of all the new matter appearing therein. The court below overruled the demurrer above mentioned, and, we think, correctly. The case then proceeded to trial.

The record shows that the plaintiff and several other witnesses testified to sustain the allegations of his petition, but as the controlling questions in the case must chiefly be determined upon the effect to be given plaintiff's testimony, the material parts thereof, briefly abstracted are: That plaintiff met Foster, the defendant, for the first time on August 14, 1923; that plaintiff was walking along the street and, seeing that Foster had a board out on the street, plaintiff went in and inquired about a place on Bates' creek. Foster asked him if he had used his homestead right and plaintiff said he had not. Foster stated that he had a place twelve miles out on the Yellowstone Highway, which belonged to a lady Foster had homesteaded before; that the lady did not want her name to be known; that she wanted cash money out of it; that plaintiff, after talking with Foster, sold another piece of real estate owned by himself and wife, in order to raise money to buy the place Foster had told him about. In response to a question by plaintiff's counsel, "Did Mr. Foster state whether or not he was representing a third party or representing himself? " an objection that the question was incompetent under the pleadings was interposed by the Surety Company, which was, by the court, sustained. Plaintiff's counsel then offered to prove by the witness "t...