Wycoff, Seaman & Benedict v. Davis

• Decision Date: 02 May 1905
• Citation: 103 N.W. 349,127 Iowa 399
• Parties: WYCOFF, SEAMAN & BENEDICT, Appellant, v. HERMAN DAVIS, Appellee, and PETER RUSH, Defendant
• Court: Iowa Supreme Court

103 N.W. 349

127 Iowa 399

WYCOFF, SEAMAN & BENEDICT, Appellant, v. HERMAN DAVIS, Appellee, and PETER RUSH, Defendant

Supreme Court of Iowa, Des Moines

May 2, 1905

Appeal from Wapello District Court.-- HON. F. W. EICHELBERGER Judge.

ACTION of replevin to recover the possession of two typewriters. Defendant Davis claimed to hold the same in pledge to secure a loan of money. The case was tried to the court, a jury being waived, resulting in a judgment for the defendant fixing the value of his interest in the property at $ 134.23 being the amount of the alleged loan with interest. Plaintiff appeals.-- Reversed.

Reversed.

McNett & Tisdale, for appellant.

Jaques & Jaques, for appellee.

OPINION

DEEMER, J.

One Dahlberg was plaintiff's agent at the city of Ottumwa for the sale of Remington typewriters. Defendants Davis and Rush were running a gambling house in Ottumwa, and Dahlberg was a frequenter of their establishment. In this gambling den he, Dahlberg, lost several hundred dollars of his employers' money. Dahlberg had authority to sell and deliver typewriters in his particular locality, which included the city of Ottumwa, and to collect the purchase price therefor, and also to collect plaintiff's accounts in general within the territory alloted to him. In September of the year 1902, Dahlberg was short in his accounts with his employers to the extent of nearly $ 800. During this month he sent two checks to his principal purporting to represent some collections made by him. These checks were drawn on an Ottumwa bank, and, when returned, were dishonored by that bank. Plaintiff, through its other agents, was demanding a settlement by Dahlberg, and he, Dahlberg, went to defendant Davis for help. Davis finally loaned him $ 125, but insisted upon the delivery of the machines in question as security for the loan. To this Dahlberg yielded, and pursuant thereto delivered the machines to Davis, and at the same time, at Davis' request, he, Dahlberg, issued a receipt to Davis, in the name of the plaintiff company, showing payment of the sum of $ 205 in full for the two machines. Dahlberg did not receive more than $ 125, and he did not sell the machines to Davis. Davis says in a half-hearted way that he purchased the machines from Dahlberg, but his own testimony shows that the transaction was a pledge rather than a sale. With the money so received Dahlberg took up the two protested checks; but plaintiff had no knowledge as to where the money came from until after it had actually been received and credited. Thereupon one of plaintiff's agents went to Ottumwa to settle its affairs with Dahlberg, and then learned of the pledge of the machines. This action of replevin was then instituted, resulting in the judgment heretofore stated.

While many questions are argued, there is but a single proposition involved in the case, and that is, may plaintiff recover the machines from Davis without returning the $ 125 loaned by him to Dahlberg? Much is said about the rules applicable to gambling transactions, which has nothing to do with this case. Davis did not return, nor did Dahlberg receive, the $ 125 because of any change of heart on the part of Davis. No one pretends that this $ 125 was any part of the money won from Dahlberg. It is practically conceded that it was a loan from Davis to Dahlberg, induced to some extent, perhaps, by the thought that, as Dahlberg had lost his money in defendant's establishment, he, Davis, would be more likely than any one else to make the loan; but at the same time Davis was not conscience-smitten, for he demanded and received what was thought to be adequate security for the loan. But this loan was not made to plaintiff company, or to Dahlberg as agent of the company, but to Dahlberg individually, to enable him to meet a shortage due his principal. He had the right as an individual to borrow money of whom he would, but he had no authority to pledge the property of his employer as security for his individual debts. No 351 agent has any such implied authority, and it is not claimed that any express authority was given. Dahlberg told Davis that he was short in his accounts, and that he wanted the money to send to his employer. This being true, it is clear that the loan was not made either in fact or form to the company. Dahlberg did represent that the machines belonged to him individually, and that he had a...