Sievert v. Wood
Citation | 300 P. 1090,133 Kan. 540 |
Decision Date | 03 July 1931 |
Docket Number | 30,038 |
Parties | CHRIST SIEVERT, Appellant, v. C. A. WOOD, Appellee |
Court | United States State Supreme Court of Kansas |
Decided July, 1931.
Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
PRINCIPAL AND AGENT--Liability of Third Person to Agent--Interest of Agent. Where one was agent for a threshing-machine company under a contract to receive a certain per cent commission for each machine which he should sell, this commission not to be paid till all notes in payment for the machine and mortgages thereon were properly executed, and he procures a buyer who enters into a contract to buy a machine and who breaches his contract before executing the notes and mortgages, the agent has no such interest in the contract between the buyer and the threshing-machine company as to enable him to maintain an action against the buyer for the commission which he would have received had the buyer finally completed his contract.
John R Parsons, of Wakeeney, for the appellant.
David Ritchie, of Salina, for the appellee.
This action was started in justice court for the recovery of money paid to defendant by plaintiff by mistake. Defendant filed a counterclaim for commissions which the breach by plaintiff of a contract between plaintiff and defendant's principal caused defendant to lose. Judgment was for plaintiff in justice court. Appeal was taken to the district court, where judgment was for defendant for the difference between the amount paid and the amount claimed by defendant. Trial was to the court.
The facts are best told by the findings of fact and conclusions of law. They are as follows:
Appellant contends that appellee had no right to sue him to recover a commission because the contract of purchase was between appellant and the principal of appellee, while the contract for compensation was between appellee and his principal.
Appellee, on the other hand, contends that he had such a substantial interest in the contract between the Minneapolis Threshing Machine Company and appellant as to entitle him to maintain an action upon the breach of that contract by appellant and to recover from him any actual damages which he sustained by the failure of appellant to perform.
He cites and relies on R. S. 60-401 and Manufacturing Co. v. Burrows, 40 Kan. 361, 19 P. 809, also Gross v. Heckert, 120 Wis. 314, 97 N.W. 952, and other cases which hold that the real party in interest may bring a suit and that where a contract is made between two parties for the benefit of a third the third party, though not a party to the contract, is the proper person to commence and to maintain any action which may be brought upon any breach of the contract.
We have reached the conclusion that this statute and the cases are not in point. It cannot be said that a contract between appellant and the threshing-machine company was made for the benefit of the appellee, the agent of the company. When appellant breached his contract to take the machine he was liable to the company in damages. The measure of damages would not have any relationship to agent's commission, however, but would be what the company lost by shipping the machine out there and not selling it. Instead of this action, however, the company saw fit to sell the machine to some one else and not bring suit against appellant. Appellee had not yet earned his commission. His contract with the company was that he would not be entitled to any commission until the contract of purchase had been fully closed by appellant, the machine delivered to him and any notes and mortgages required under the contract fully executed.
The general rule is that one who contracts as agent cannot maintain an action in his own name and right upon the contract. (Lawson on Contracts, § 192; 2 Mechem on Agency, 2d ed. § 2022; Story on Agency, 9th ed. § 391; Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946; Everet & Wightman v. Bancroft, 22 Ohio St. 172.) There are exceptions to this rule which may be classified as follows:
"First where the agent contracts in his own name; second, where the agent does not disclose his principal, who is unknown; third, where by the usages of trade the agent is...
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