Scully v. Dodge

• Decision Date: 08 December 1888
• Citation: 19 P. 807,40 Kan. 395
• Parties: WILLIAM SCULLY v. P. L. DODGE et al
• Court: Kansas Supreme Court

19 P. 807

40 Kan. 395

WILLIAM SCULLY v. P. L. DODGE et al

Supreme Court of Kansas

December 8, 1888

Error from Marion District Court.

ACTION to recover rent. Judgment for the defendant, at the March term, 1887. The plaintiff Scully brings the case here. The material facts are stated in the opinion.

Judgment reversed and cause remanded for new trial.

Keller & Dean, for plaintiff in error.

R. L King, for defendants in error.

HOLT C. All the Justices concurring.

OPINION

HOLT C.:

This action was brought by plaintiff in error against defendants for the rent of a farm; judgment was rendered in favor of defendants, and the plaintiff comes to this court. It appears from the record that in 1885 P. L. Dodge and wife, defendants, sold their farm to plaintiff and became his tenants for five years on the farm they had sold; but it was understood at the time of the sale and the execution of the lease, if either party at any time could find another tenant, the lease should be assigned, and such person take their place on the farm as tenant. About a year after, the lease was assigned to Arthur Smith, who occupied the premises after the first year, and the Dodges moved off. The plaintiff is an alien, and has large landed interests in this country. His general agent is C. W. Koehnle, of Lincoln, Illinois; his local agent for his lands in Marion and Dickinson counties is F. W. Fox, of Marion, Kansas. Fox's agency is a limited one, and is in writing, which was offered in evidence as the only written instructions he had received from his landlord, to wit:

"I authorize F. W. Fox, of Marion, Marion county, Kansas, to receive all my rents, and to make and enforce all collections for me in Marion and Dickinson counties, and to sue for the same whenever he himself shall think it advisable to do so; and to take such other proceedings for the recovery of the same as he may be advised to do by Mr. C. W. Koehnle, of Lincoln, Illinois, or other of my duly-appointed agents in the United States."

He received no instructions from Mr. Koehnle or other agents of the plaintiff. Shortly after the lease was assigned to Smith, Dodge sold part of the corn and hay to Smith, who gave him a note for $ 150, the amount of the rent of the place for one year, and another note for $ 30, supposed to be the amount of the taxes on the place for the same time, as it was stipulated in the lease that the taxes were to be paid by the tenant. These notes were made payable to P. L. Dodge, and were left with F. W. Fox, but were not indorsed. There is a conflict of testimony, whether they were left as payment for Dodge's rent, or whether they were left as collateral security for such rent. Upon conflicting evidence the jury returned a verdict for defendants, and thereby found that they were received by Fox in payment of rent. Such finding is conclusive here.

The plaintiff now claims that Fox did not have authority to receive these notes as payment of rent; that he could only receive such payment in cash, and that he was precluded from taking the notes. We think the contention of the plaintiff in this matter is correct. Under the power given Fox as the agent of plaintiff he could only receive rents, make and enforce collections, and bring suits. Where a principal gives the naked...