Smith v. Tieman , 10 Ky. Op. 765 ( 1880 )

Opinion by

Judge Pryor :

The difficulty in sustaining the judgment below arises from the manner in which it is alleged this purchase money note was discharged or paid by the appellee. That Davidson was the agent to sell was clearly shown; but that he had the right to receive, in payment for the notes, a discharge of his own liabilities is not authorized from any testimony in the case.

It is shown here that the agent who sold the property was indebted to the appellee for goods or groceries, and agreed that these groceries should be settled for in that manner. There is no proof showing any such authority. The authority to sell and collect does not empower the agent to receive as payment a discharge from his own indebtedness, and in the absence of such a special authority such a payment must be disregarded.

A. D. Smalley, for appellant. John S. Ducker, for appellee. [Cited, Woodruff v. Amercian Road Mach. Go., 23 Ky. L. 1551, 65 S. W. 600.]

The judgment is, therefore, reversed and cause remanded with directions to enforce the lien.