Sievert v. Wood

Citation300 P. 1090,133 Kan. 540
Decision Date03 July 1931
Docket Number30,038
PartiesCHRIST SIEVERT, Appellant, v. C. A. WOOD, Appellee
CourtUnited States State Supreme Court of Kansas

Decided July, 1931.

Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.

Judgment reversed.

SYLLABUS

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.

OPINION

SMITH, J.:

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:

"In April, 1929, plaintiff made a contract in writing with the Minneapolis Threshing Company to purchase a certain machine. The contract was approved by the company and the machine was shipped to Grainfield, Kansas, upon the terms of the contract. The plaintiff failed, neglected and refused to accept the machine or to make the payments and give the notes and security, as prescribed by the contract.

"After the machine came, and after the plaintiff had given the company's agent at Grainfield a check for $ 110, amount of freight on the machine, payable to C. A. Wood, the plaintiff proceeded no further, but two or three days later plaintiff bought a machine of the same company at Ness City. Somewhat later the machine which had been shipped to Grainfield to fill plaintiff's order was sold and delivered to another purchaser, Joe Walt.

"2. The check for $ 110, which was intended to pay freight, as required of the purchaser by the contract, was made payable to C. A. Wood, and was signed by the plaintiff without his noticing that it was not payable to the company. Plaintiff made effort to stop payment of the check, but the bank did not identify the same as described by him, and so paid the money, $ 110, to the defendant.

"3. The defendant at all times had an agency contract with the company to represent it in Gove county, where the contract between plaintiff and such company was made. Under the terms of the contract defendant was entitled to certain commission for the sale of machinery for the company, but was not entitled to the commission until the contract of purchase had been fully closed by the customer, the machine delivered to him, and any notes and mortgages required under the contract had been fully executed.

"4. The plaintiff, by his failure to accept the machine and pay for it, and execute and deliver the instrument and security, as required therein, breached the contract, and beyond paying $ 110, intended for freight, made no attempt to carry out the contract in any particular."

"CONCLUSIONS OF LAW.

"The purchase by the plaintiff of another machine from the company at Ness City, was in no way a fulfillment, wholly or partly, of the contract made by plaintiff in April, 1929.

"2. The defendant, by his acts, had earned his commission amounting to $ 257.50 upon the contract between plaintiff and the company, in consideration of the services that defendant performed in connection therewith under his contract of agency with the company.

"3. The company is not liable, and was not liable to defendant until plaintiff had fully performed his part of the contract, and this plaintiff had not at any time done.

"4. The defendant was damaged by plaintiff's failure, neglect and refusal to carry out the contract. The amount of defendant's damage was $ 257.50 under his contract with the company. The plaintiff having caused this damage and loss to defendant by plaintiff's breach of his contract with defendant's principal, the company became liable for the damage and loss so caused to the amount of $ 257.50. The defendant having received moneys from plaintiff to the amount of $ 110 was compensated to that extent upon his loss and damage.

"5. The plaintiff is indebted to defendant for the difference in the sum of $ 147.50, for which judgment should be entered."

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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6 cases
  • Leaderbrand v. Central State Bank of Wichita
    • United States
    • Kansas Supreme Court
    • January 25, 1969
    ...and that the agent's right to a commission on the sale is not sufficient to enable him to maintain the action, citing Sievert v. Wood, 133 Kan. 540, 300 P. 1090. It should be noted this is not an action upon a check, but is an action to hold the payor bank accountable for the amount of a ch......
  • Glenn v. Lukenbill
    • United States
    • Kansas Supreme Court
    • March 7, 1964
    ...70 Kan. 601, 79 P. 133, 68 L.R.A. 308; and Manley v. Park, 68 Kan. 400, 75 P. 557, 66 L.R.A. 967. The appellee relies on Sievert v. Wood, 133 Kan. 540, 300 P. 1090, in support of its contention that the appellant was an agent for the seller of the real estate in question and could not sue o......
  • Zeligson v. Hartman-Blair, Inc.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 9, 1942
    ...v. Igleheart Bros., 7 Cir., 95 F.2d 4, 7; G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, 84 P.2d 934, 936. 6 Sievert v. Wood, 133 Kan. 540, 300 P. 1090, 1092; Restatement of the Law of Agency, Vol. II, § 372(2), Comment, p. 7 Gen.Stat. of Kansas, 1935, ch. 33, Art. 1, 33-106; Enge......
  • Ellingsworth v. Shannon
    • United States
    • Oregon Supreme Court
    • March 1, 1939
    ...(Alberta, 1926) 4 D.L.R. 538 (1926), Vol. 3, West. Weekly Rep. 327; Hubbard v. Epworth, 69 Mich. 92, 36 N.W. 801; Sievert v. Wood, 133 Kan. 540, 300 P. 1090; Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946; Evrit and Wightman v. Bancroft, 22 Ohio St. 172; Goff v. Adelson, 229 App. Div. 802, 242 ......
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