Wilson v. Droll
| Decision Date | 11 March 1916 |
| Docket Number | 19,961 |
| Citation | 97 Kan. 445,155 P. 798 |
| Parties | A. B. WILSON, Appellee, v. W. H. HAUN and GEORGE J. DROLL, Partners, etc., Appellants |
| Court | Kansas Supreme Court |
Decided, January, 1916.
Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. AGENCY--Express Appointment Not Essential--Appointment May be Implied. To establish the relation of agency an express appointment and an acceptance thereof is not essential, but it may be implied from other facts, such as the statements of the parties, their conduct and the relevant circumstances.
2. SAME--Evidence Shows Agency to Buy Cattle. The evidence herein examined and held to be sufficient to uphold a finding of the jury that one who purchased the plaintiff's cattle and shipped them to the defendants was acting in the capacity of agent of the defendants.
Chester I. Long, and A. M. Cowan, both of Wichita, for the appellants.
Fred Stanley, Claude C. Stanley, and Benjamin F. Hegler, all of Wichita, for the appellee.
A. B. Wilson brought this action against W. H. Haun and George J. Droll, partners doing business as the Haun-Droll Live Stock Commission Company, to recover the value of his cattle which had been received by the defendants. The cattle were purchased from the plaintiff by W. B. Gillespie, who bought cattle from several parties and shipped them to the defendants, giving to the purchasers drafts from a book furnished him by the defendants. According to the testimony of the plaintiff, at the time the cattle were purchased from the plaintiff, Gillespie began to write out a check, when the plaintiff objected and stated that he must have the money; but Gillespie then showed the plaintiff the draft book which had been furnished him, saying: The following is a copy of one of the drafts issued to plaintiff:
"This draft is void only in payment for livestock.
No. Hogs....
No. Cattle....
THE HAUN-DROLL LIVE STOCK COMMISSION CO.
Wichita, Kansas, 9/4/1912.
Pay to the order of A. B. Wilson,....$ 545.00
Five Hundred Forty-Five and no/100 Dollars.
To Union Stock Yards National Bank, Wichita, Kansas.
When Gillespie entered into business relations with the defendants they gave him the draft book and directed him to use it in paying for cattle that were shipped to them and they admonished him to "buy them close." He was to buy and ship cattle to the defendants and to draw on them to pay for the cattle with the drafts so furnished him. As will be observed, the book of drafts had written across the face of each draft and near the top in bold type the name "Haun-Droll Live Stock Commission Co." and at the bottom was printed the word "Buyer," following which the name "Gillespie" was written. Across the top of the check was printed the warning: "This draft is void only in payment for livestock." The plaintiff states that he relied on the representations made and understood that he was dealing with the defendants; that his cattle were shipped to and received by them; but that the drafts issued were protested, and have never been paid. The defendants admit giving Gillespie the book of drafts and also that they instructed him not to make any drafts on them until the cattle for which they were issued had been shipped to the defendants, but say that he was never authorized to act as their agent in buying cattle. It appears that several bunches of cattle were purchased by Gillespie and shipped to the defendants, and it is claimed by them that they kept an account with him and that when cattle were shipped to them they remitted the proceeds of the sale after deducting their commission and the advances made to him. It appears that in one case they paid a draft for a thousand dollars which Gillespie had issued as a forfeit on cattle bargained for and which were never shipped to or received by the defendants. It appears that the drafts for plaintiff's cattle were turned down by the defendants because Gillespie had drawn on them for a greater amount than the value of the cattle that had been shipped to them. Gillespie never had any account in the bank on which the drafts were drawn and no credit there. The jury found that Gillespie purchased the cattle as the agent of the defendants and not for himself.
Upon this appeal the principal contention is that the finding of the jury is not supported by the evidence. The plaintiff asked a recovery upon two grounds: (1) that the sale was made for cash, that the check was not payment, and that there was no transfer of the title to the cattle until the check was honored or the price paid, and the defendants were therefore liable for the conversion of the plaintiff's cattle; and (2) upon the theory that Gillespie was the agent of the defendants and purchased the cattle for them in that capacity. The appeal will be disposed of upon the theory of agency.
The evidence appears to be sufficient to warrant the inference that Gillespie purchased the cattle as the agent of the defendants. There was no proof of an express appointment of Gillespie or of his acceptance, but agency may be implied from the conduct of the parties and the circumstances of the case. (Banks Bros. v. Everest & Waggener, 35 Kan. 687, 12 P. 141; Raynor v. Bryant, 43 Kan. 492 23 P. 601; Hansford v. Meserve, post, p. 450, 53 P. 835; Linscott v. Conner, 85 Kan. 865, 118 P. 693; 2 C. J. 435.) As we have seen, Gillespie was authorized to buy and ship cattle to the defendants, who cautioned him to buy them closely. They sent him out with their book of drafts, which fairly indicated that they were the purchasers of the cattle for which the drafts were to be issued. Besides labeling the drafts in bold type with the name of their company, they had printed below the...
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