Steel v. Blunck
| Decision Date | 31 December 1930 |
| Docket Number | 5597 |
| Citation | 295 P. 426,50 Idaho 244 |
| Parties | ALVIN A. STEEL, LILLY A. LOVELAND and HARRY O. STEEL, Respondents, v. L. A. BLUNCK and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellants |
| Court | Idaho Supreme Court |
FACTORS-LIABILITY OF STATUTORY BONDSMAN.
1. Contract made defendant's statutory surety liable for breach, whether contract was for sale of apples to defendant or merely made defendant broker (Laws 1927, chap. 236).
2. As respects liability on statutory bond, evidence sustained finding defendant failed to pay for apples, whether defendant was buyer or broker (Laws 1927, chap. 236).
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, Judge.
Action on contract. Judgment for plaintiffs. Affirmed.
Judgment of the trial court affirmed. Costs awarded to respondents. Petition for rehearing denied.
C. S Hunter, for Appellant Blunck.
The assignments of error can be collected in one statement, that the evidence introduced by the plaintiffs is insufficient as a basis of recovery by the plaintiffs, under the allegations of the third cause of action, and that there is insufficient proof of the contract so alleged.
The burden of proof of the allegations of the complaint must be sustained by the plaintiff. (Grisinger v. Hubbard, 21 Idaho 469, 476, Ann. Cas. 1913E, 87, 122 P. 853; Jaycox v. Varnum, 39 Idaho 78, 226 P. 285; Marysville Dev. Co. v. Hargis, 41 Idaho 257, 239 P 522; Russell v. Banks, 11 Cal.App. 450, 105 P. 261; 10 R. C. L., Evidence, secs. 48-51; 22 C. J., pp. 70-80.)
Richards & Haga, for Appellant American Surety Company.
Chapter 236 applies only to persons acting as brokers or commission merchants for compensation, and it does not apply, and was not intended to apply, to persons rendering gratuitous service as an accommodation to friends--such persons are not required to have a license or give bond, and when gratuitous service is rendered by a licensed and bonded broker, he is on the same footing as other persons rendering gratuitous service.
The terms "broker" and "commission merchant" are used in the act (chap. 236) as understood in commerce and trade.
"A 'broker' is an agent employed to make bargains and contracts between other persons in matters of trade for a compensation commonly called 'brokerage,' and is a mere negotiator between other parties who does not act in his own name and is not entrusted with the custody or possession when employed to buy or sell goods." (Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561, 73 N.E. 430; French v. City of Toledo, 81 Ohio St. 160 90 N.E. 160, 25 L. R. A., N. S., 748; 9 C. J. 508.)
John C. Rice, for Respondents.
By applying for and receiving a license under chap. 236 and by executing and filing a bond, both appellants are estopped from questioning the constitutionality of chap. 236. (Cooley's Const. Limitations, 6th ed., p. 214; Huson v. Richard B. Brown, Inc., 90 Misc. 175, 154 N.Y.S. 131; Musco v. United Surety Co., 196 N.Y. 459, 134 Am. St. 851, 90 N.E. 171.)
The transcript shows that defendant Blunck received compensation for handling the apples mentioned in the third cause of action. (Webster's International Dictionary, "Compensation"; James River & Kanawha Co. v. Turner, 9 Leigh (Va.), 313.)
The statute governing farm produce brokers, farm produce dealers and farm produce commission merchants applies to those who sell for brokerage or commission, and also to those who buy in carload lots on credit or when payment is not made in full upon delivery. (1927 Sess. Laws, chap. 236.)
The executor under the will of John Steel, deceased, brings this action to recover payment for apples delivered by said deceased to the defendant Blunck, and joins as party defendant the American Surety Company which had duly executed a bond for defendant Blunck as a farm produce dealer under the provisions of 1927 Sess. Laws, chap. 236. From a judgment in favor of the respondents here, substituted for the original plaintiff, and against both defendants, the defendants appeal.
The apples were delivered by Steel to Blunck under an oral modification of a written contract. The original contract, despite some equivocal language used in it, was by all parties hereto conceded to be a contract for the purchase by Blunck of the apples. Later on, the apples being found defective and Blunck having objected to paying the agreed price for them, Steel agreed and said to Blunck, "You sell them and give me what you can get." The trial court found that by the modification the contract was changed from one of purchase and sale to one whereby Blunck was to sell the apples on commission.
The appellant American Surety Company, contending that the modification of the contract did not change it from one of purchase and sale but only altered the price agreed to be paid, insists that the statute does not apply to a transaction of purchase and sale but only to a brokerage or commission...
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Zach v. Pond
...claim within the provisions of the statute under which he sues. (1927 Sess. Laws, chap. 236; 1929 Sess. Laws, chap. 180; Steele v. Blunck, 50 Idaho 244, 295 P. 426.) & Sweeley and J. H. Barnes, for Respondent. The respondent was not required to show that he was to be regarded as a consignor......