Miller v. Hallock

• Decision Date: 04 March 1887
• Citation: 13 P. 541,9 Colo. 551
• Parties: MILLER v. HALLOCK.
• Court: Colorado Supreme Court

13 P. 541

9 Colo. 551

MILLER v. HALLOCK.

Supreme Court of Colorado

March 4, 1887

Error to county court, Arapahoe county.

This was an action instituted by the plaintiff in error to recover the alleged contract price of a quantity of wood delivered by said plaintiff to the defendant in error. The complaint states that the wood was delivered on a contract entered into between the parties. It alleges that 'during the months of September and October, 1882, the said plaintiff sold and delivered to the said defendant one hundred and ninety-five and three-fourths cords of wood, in consideration for which the said defendant then agreed and promised to pay plaintiff the sum of four hundred and ninety-six and 23-100 dollars which said defendant has wholly failed and neglected to do and said sum of four hundred and ninety-six and 23-100 dollars remains due and unpaid, for which plaintiff prays judgment, and for costs of suit.' The defendant's answer contains a specific denial of each allegation in the complaint. The only witness sworn was the plaintiff, who testifies in his own behalf, against the objections of the defendant, that a man by name of Sargent came to his residence in Jefferson county, representing himself to be defendant's agent, and purchased for defendant 250 cords of wood, agreeing to pay $2.50 per cord for _____ cords, and $2.65 per cord for the balance. Sargent directed the wood to be shipped direct to the defendant, and agreed that defendant should pay the freight. Plaintiff, believing the stranger to be the agent of Mr. Hallock, undertook the fulfillment of the contract, and shipped wood to Mr. Hallock by railway for three weeks, and then came to the city to see about the matter. When he met the defendant, the latter told him that he had purchased the wood from Sargent, and had overpaid him for the quantity received, and that plaintiff had better look to Sargent, as he did not propose to pay twice for it. Defendant had used part of the wood received, and the balance was in defendant's yard. Defendant's counsel objected to any testimony of the alleged contract until the agency of Sargent should be first shown. The trial was to the court who stated that the testimony would be received, but disregarded unless the agency was shown. The plaintiff having no proof of the alleged agency, the court, at the conclusion of his testimony, sustained the defendant's motion for a nonsuit.

Rogers & McCord, for appellant.

Decker & Yonley, for appellee.

BECK C.J.

It is conceded by the parties to this cause that the man Sargent, who procured the shipment of the wood from the plaintiff, Miller, to the defendant, Hallock, was a swindler, and that both plaintiff and defendant acted in good faith. Plaintiff's counsel contends that the plaintiff is entitled to compensation from Hallock for his wood, because it was neither sold nor delivered to Sargent, but shipped to, received by, and converted to the use of said defendant. In support of this theory, counsel cite the following cases, which are clearly analogous to this case, so far as the facts are concerned, and which seem to sustain the rule of liability contended for: Hamet v. Letcher, 37 Ohio St. 356; Barker v. Dinsmore, 72 Pa. St. 427; Klein v. Seibold, 89 Ill. 540; Barnard v. Campbell, 55 N.Y. 457; Moody v. Blake, 117 Mass. 23.

The theory of the defense, however, is unanswerable so far as the present action is concerned. It is that the complaint counts upon a...