W. W. Kimball Company v. Payne

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtCORN, JUSTICE.
Citation64 P. 673,9 Wyo. 441
PartiesW. W. KIMBALL COMPANY v. PAYNE, ET UX
Decision Date22 April 1901

64 P. 673

9 Wyo. 441

W. W. KIMBALL COMPANY
v.

PAYNE, ET UX

Supreme Court of Wyoming

April 22, 1901


ERROR to the District Court, Sweetwater County, HON. DAVID H. CRAIG, Judge.

Replevin for a piano. Defendants claimed storage charges. The facts are stated in the opinion.

Affirmed.

T. S. Taliaferro, Jr., and John H. Chiles, for plaintiff in error.

While, if a general agent exceed his authority, the principal is bound, provided the party dealing with him does not know the agent's authority is being exceeded, the rule is different as to a special or particular agent. In the latter case, the principal is not bound. (1 Pars. Contracts, Sec. 42.) An attorney is a special agent, and his acts must be strictly within his authority to bind his client. (Rossiter v. Rossiter, 8 Wend., 494, 24 Am. Dec., 62.) Beyond those matters necessarily incidental to the discharge of the purpose for which he was employed, his powers cease. (3 Ency. L., 2d. ed., 345, 347; Welsh v. Cochran, 63 N.Y. 181, 20 Am. R., 519). An attorney has no implied power to assign, or transfer the demand or suit to a third person. (Mechem on Agency, Sec. 813), or to give up the demand, and take other security. (Id.) He cannot enter into any agreement independent of any action (1 Pars. Contr., Sec. 117), nor can he bind his client by an agreement collateral merely to a cause of action intrusted to his management. (Wonderly v. Martin, 69 Mo. App., 84; Robinson v. Murphy, 69 Ala. 547.) The defendants were bound with notice of the extent of the attorney's authority. (Annely v. DeSaussure, 12 S. C., 488.) Any contract between the attorney and defendants for the storage of the piano was independent of the action in which the attorney had been retained, and beyond the scope of his authority. (Herbert v. Alexander, 2 Cal., 420; 1 Pars. Contr., 117; Smith's Heirs v. Dixon, 3 Metc. Ky.; 3 Ency. L., 348; 1 id., 987; Harbach v. Colvin, 73 Ia. 638; Dickinson v. Hodges, 43 N. J., Eq., 46; Lewis v. Duane, 141 N.Y. 313; Smith v. Lamberts, 7 Gratt., 142.) The attorney may have bound himself, but not the principal. (1 Ency. L., 1122; Pars. Contr., 116; Pittingill v. McGregor, 12 N. H., 179.) The attorney's employment ceased when he recovered the piano. He then converted it to his own use, and having converted it, he had no title to convey. He was not, himself, lawfully in possession, so as to have had a lien for his storage of the property.

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

[9 Wyo. 443] CORN, JUSTICE.

This was a suit in replevin. Some time prior to its institution the plaintiff in error by a suit in replevin had recovered from Gilligan and Taliaferro a certain piano. [9 Wyo. 444] One Louis J. Palmer was the attorney for plaintiff in error in that suit. Upon the recovery of the property Palmer kept it for a time at his own house, and upon changing his residence, placed it in the custody of Payne for safe keeping. This action for the recovery of the property was brought against Payne and his wife, who defend upon the ground that they have a lien...

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8 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...v. Miles, 199 P. 933; Slothower v. Hunter, 15 Wyo. 189; City v. Murphy, 19 Wyo. 238; Riordan v. Horton, 16 Wyo. 363; Kimball Co. v. Payne, 9 Wyo. 441.) Tender of a deed of conveyance by vendor must be shown before action for recovery of purchase money on land sale contract can be maintained......
  • Grieve v. Grieve
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Abril 1907
    ...law and equity are abolished; the rule stated is, therefore, plainly controlling. (Clayton v. Freet, 10 Ohio St. 544; Kimball Co. v. Payne, 9 Wyo. 441; Conway v. Merc. Co., 6 Wyo. 468.) The evidence sufficiently establishes the mistake. The one party testified to a conversation wherein the ......
  • Taylor v. Stockwell, 774
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Enero 1915
    ...be disturbed. (Martin v. Dowd, 8 Ida. 453, 69 P. 276; O'Brien v. Foglesong, 3 Wyo. 57; Edwards v. Murray, 5 Wyo. 153; Kimball Co. v. Payne, 9 Wyo. 441; Harden v. Card, 15 Wyo. 217; R. R. Co. v. Morris, 16 Wyo. 308; Slothower v. Hunter, 15 Wyo. 189). Some of the objections to the admission o......
  • National Supply Co.-Midwest v. Weaver, 1327
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Agosto 1926
    ...rule, cannot be disturbed where the evidence is conflicting; Ketchum v. Davis, 3 Wyo. 164; Hester v. Smith, 5 Wyo. 291; Kimball v. Payne, 9 Wyo. 441; Riordan v. Horton, 16 Wyo. 363. Appellant claims to have furnished materials under an oral contract; 4830 C. S. relates to original contracto......
  • Request a trial to view additional results
8 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...v. Miles, 199 P. 933; Slothower v. Hunter, 15 Wyo. 189; City v. Murphy, 19 Wyo. 238; Riordan v. Horton, 16 Wyo. 363; Kimball Co. v. Payne, 9 Wyo. 441.) Tender of a deed of conveyance by vendor must be shown before action for recovery of purchase money on land sale contract can be maintained......
  • Grieve v. Grieve
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Abril 1907
    ...law and equity are abolished; the rule stated is, therefore, plainly controlling. (Clayton v. Freet, 10 Ohio St. 544; Kimball Co. v. Payne, 9 Wyo. 441; Conway v. Merc. Co., 6 Wyo. 468.) The evidence sufficiently establishes the mistake. The one party testified to a conversation wherein the ......
  • Taylor v. Stockwell, 774
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Enero 1915
    ...be disturbed. (Martin v. Dowd, 8 Ida. 453, 69 P. 276; O'Brien v. Foglesong, 3 Wyo. 57; Edwards v. Murray, 5 Wyo. 153; Kimball Co. v. Payne, 9 Wyo. 441; Harden v. Card, 15 Wyo. 217; R. R. Co. v. Morris, 16 Wyo. 308; Slothower v. Hunter, 15 Wyo. 189). Some of the objections to the admission o......
  • National Supply Co.-Midwest v. Weaver, 1327
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Agosto 1926
    ...rule, cannot be disturbed where the evidence is conflicting; Ketchum v. Davis, 3 Wyo. 164; Hester v. Smith, 5 Wyo. 291; Kimball v. Payne, 9 Wyo. 441; Riordan v. Horton, 16 Wyo. 363. Appellant claims to have furnished materials under an oral contract; 4830 C. S. relates to original contracto......
  • Request a trial to view additional results

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