Moreland v. Mason

• Decision Date: 07 November 1927
• Docket Number: 4604
• Citation: 45 Idaho 143,260 P. 1035
• Parties: A. M. MORELAND and M. K. MADDEN, Respondents, v. O. Y. MASON, Sheriff of Canyon County, Idaho, D. P. SNYDER, J. L. BAKER, and THOMAS E. BUCKNER, Appellants
• Court: Idaho Supreme Court

260 P. 1035

45 Idaho 143

A. M. MORELAND and M. K. MADDEN, Respondents, v. O. Y. MASON, Sheriff of Canyon County, Idaho, D. P. SNYDER, J. L. BAKER, and THOMAS E. BUCKNER, Appellants

No. 4604

Supreme Court of Idaho

November 7, 1927

MASTER AND SERVANT-"INDEPENDENT CONTRACTOR"-PRINCIPAL AND AGENT-"AGENT"-SALES TITLE IN PRINCIPAL-NONSUIT-INSTRUCTIONS-WITNESSES-REPETITION OF QUESTIONS-APPEAL AND ERROR-FAILURE TO DISCUSS ASSIGNMENT-WRONGFUL EXECUTION-MEASURE OF DAMAGES.

1. An "independent contractor" is defined as one who rendered services in the course of an occupation representing the will of the employer only as to the results of the work and not as to the means by which it is accomplished.

2. An "agent" is defined as one who acts for another by authority from him; one who undertakes to transact business or manage some affair for another by authority and on account of the latter.

3. Where plaintiffs being engaged in the business of buying and shipping livestock at C., in so doing employed W. and G. to buy stock for them, plaintiffs furnishing the money necessary for purchases and giving instructions as to price to be paid W. and G., in purchasing, giving their check and it being taken care of by plaintiffs, plaintiffs bearing the loss in case of cattle bought at more than market price, and only giving W. and G. the difference between the price paid and market price where bought below market price, W. and G whose functions were purely of a business character and representing plaintiffs in buying, were agents of plaintiffs and not independent contractors, so that title to cattle, attached as theirs while being brought in by them was in plaintiffs, though the names of the principals were not disclosed to the persons of whom W. and G. bought, and though they performed the labor required in bringing in the stock to shipping point, and were not controlled by plaintiffs in the manner in which this was done.

4. Defendants' motion for nonsuit was properly denied, the evidence warranting verdict for plaintiffs.

5. The evidence showing agency as matter of law, and the jury in effect having found its existence, any error in instruction as to its existence was not prejudicial.

6. There was no error in sustaining objection to questions where it was a mere repetition of questions which witness had answered.

7. Consideration of assignment omitted, appellant not having discussed it or cited any authorities that instruction complained of does not correctly state the law.

8. There was no error in refusing a requested instruction, it having no application to the issues.

9. In the absence of proof of special damages, the measure of damages of the owners of property which was sold on execution against another is what it cost them to regain possession of the property, or what they paid therefor at the execution sale, they having been the purchasers thereat.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Judgment affirmed with costs to respondents.

Buckner & Warren, for Appellants.

Where the testimony relied upon to establish the alleged agency is clear and uncontradicted, the construction of such testimony is for the court and not for the jury, and the question whether or not there is any evidence tending to prove the existence of the agency is a matter for the court. (2 C. J. 960, sec. 731, notes 10 and 11; 14 R. C. L. 79, note 4; Goble v. Boise-Payette Lumber Co., 38 Idaho 525, 224 P. 439; Whitson v. Pacific Nash Motor Co., 37 Idaho 204, 215 P. 846; Green v. Soule, 145 Cal. 96, 78 P. 337; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S.W. 495.)

Where a party buys personal property and pays for it with his personal check, and the other party agrees to advance the purchase money and take the property purchased at the market price, the relation of buyer and seller arises, and not that of principal and agent. (Dec. Dig., Sales, Key 7, 8, 52-55; Dec. Dig., Prin. & Agent, Key 3-3; St. Louis & S. F. R. Co. v. Blocker (Tex.), 138 S.W. 156; Davis & Hamm Commission Co. v. Mt. Vernon Bank, 63 Tex. Civ. App. 347, 133 S.W. 448; Whitson v. Pacific Nash Motor Co., supra; Daniel v. Maddox Rucker Banking Co., 124 Ga. 1063, 53 S.E. 573; 2 C. J. 422, sec. 8 and notes; 31 Cyc. 1198-1205, and notes.)

An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of his work. (14 R. C. L. 67, note 6; 19 A. L. R. 226, 1168, and following: Goble v. Boise-Payette Lumber Co., supra; 31 Cyc. 1198; 2 C. J. 424, sec. 10.)

Walter Griffiths, for Respondents.

A verdict by a jury supported by any substantial evidence will not be set aside or disturbed on appeal. (C. S., sec. 7170; Herculith v. Gustafson, 22 Idaho 537, 126 P. 1050; Pomeroy v. Gordan, 25 Idaho 279, 137 P. 888.)

The question of agency is a question to be determined by the verdict of the jury, after having received proper instructions from the court. When there is any evidence adduced tending to prove the existence of a disputed agency, its existence or nonexistence is a question of fact for the jury, aided by proper instructions from the court. (2 C. J. 960, sec. 731; Morgan v. Neal, 7 Idaho 626, 65 P. 66; Thomas v. Moody, 57 Cal. 215; Wilson v. Haun, 97 Kan. 445, 155 P. 798; Sims v. Frew, 24 Cal.App. 725, 142 P. 106; Cook v. Smith & Stimpson, 73 Ill.App. 483; Darrin v. Whittingham, 107 Md. 46, 68 A. 269; J. J. Quinlan & Co. v. Holbrook, 162 F. 272, 89 C. C. A. 252; Stout v. Bolin, 101 Kan. 594, 168 P. 676; Vaughan v. Hinkle, 131 Ark. 197, 198 S.W. 705.)

BABCOCK, Commissioner. Featherstone and Adair, CC., concur.

OPINION

BABCOCK, Commissioner.--

This action was brought by respondents to recover damages which they claim to have sustained by reason of the conversion by appellants of sixteen head of cattle claimed to be the property of respondents. Five hundred dollars is sought as general damages claimed to be the value of the cattle, and $ 100 as special damages by reason of the arrangement for the shipping of the cattle by respondents being defeated.

The cattle in question had been seized by the appellant, O. Y. Mason, as sheriff of Canyon county, under a writ of attachment issued out of the probate court of said county in aid of an action brought by the appellant, D. P. Snyder, against G. H. and W. H. McWilliams, and Gladys McWilliams, defendants; and the appellant, Mason, as such sheriff, afterwards, by virtue of an execution issued out of the probate court upon a judgment regularly entered in said court in said action, sold the cattle for the sum of $ 401.50. Complaint was filed March 3, 1924, and an answer was filed thereto by appellants here, denying the conversion, respondents' ownership of the cattle, their value, and the suffering of loss by respondents.

At the close of the evidence appellants moved for a nonsuit which was denied as to appellants, O. Y. Mason and D. P. Snyder, but sustained as to defendants, J. L. Baker and Thomas E. Buckner. A verdict was returned in favor of respondents and judgment thereon was entered for $ 445.40, and costs. This appeal is from that judgment.

The evidence on the part of the respondents was to the effect that at the time of the alleged conversion, and some time prior thereto, the respondents were engaged in the business of buying and shipping livestock at Caldwell, Idaho, and in so doing employed W. H. McWilliams and G. H. McWilliams to buy stock for them under an arrangement whereby the respondents furnished the money necessary for such purchases. The McWilliamses, in purchasing cattle, gave their personal check on the bank and the same would be taken care of by the respondents. Before stock was purchased Moreland and Madden would instruct the McWilliamses as to the price per pound to be paid for different classes of stock. The stock when purchased by the McWilliamses would be brought to the shipping pens of Moreland & Madden and would be left there and fed until time for shipment. Moreland and Madden paid the expenses of bringing the stock in and feeding and caring for them after they were put in the yards. Just before the stock were loaded and shipped, they would be weighed and the market price determined. If the stock had been purchased at a certain price per head and at less than the market price, the McWilliamses would be paid the difference. If the price paid per head was more than the market price, Moreland and Mason would bear the loss.

There is no question raised as to the validity of the proceedings in regard to the issuance and levy of the writ of attachment or the judgment in the probate court in favor of appellant Snyder against the McWilliamses, the sale under execution issued on the judgment, or the price received by the sheriff at such sale, these facts being stipulated by the parties at the trial. The position of respondents is that the McWilliamses were the agents of Moreland and Madden and as such bought the cattle for their principals. The appellants contend that the arrangement between respondents and the McWilliamses, as shown by the evidence, under the law was not that of agency, but that the McWilliamses were acting in the capacity of independent contractors.

Appellants make the following assignments of error: 1. The court erred in overruling defendants' motion for nonsuit. 2. The verdict of the jury and the judgment of the court are contrary to the law and the evidence in the following particulars, to wit: (a) The evidence conclusively shows that the cattle were bought by the McWilliamses for the purpose of selling them to...