Bank of Odessa v. Jennings , 1885 Mo. App. LEXIS 391 ( 1885 )

Opinion by

Hall, J.

1. The petition is sufficient. ' The objection to its sufficiency made by defendant that it does not in express terms aver title in Couch to the cattle, at the time oi the execution of the mortgages, is not well made. The petition sufficiently alleges title to the cattle in Couch, and a transfer thereof to plaintiff. The petition alleges that Conch sold, assigned, transferred and set over the cattle to plaintiff. This is sufficient. Without title in himself Couch could not have sold, assigned, transferred and set over the cattle to plaintiff; and having such title, by so doing,' he transferred it to plaintiff. .

2. The point made by the defendant that the mortgage of the native cattle was void for uncertainty of description is not tenable. The description “twenty head of native two-year-old steers” under the facts of this case was sufficient. The cattle known as the Price cattle were the only cattle of that description to which Couch, the mortgageor, made any claim of ownership. Parol evidence is admissible to identify the chattels mortgaged. Jones on Chattel Mortgages, sect. 64, and many cases cited. With the aid of the evidence in this case to identify the cattle mortgaged, the description was sufficient. Idem.

3. As said under the first point, the cause of action of plaintiff is, by the petition, placed and founded upon the title of Couch to the cattle and a transfer of such title to plaintiff. Under this petition the plaintiff can recover only upon Couch’s title transferred to it. The plaintiff, while standing solely upon Conch’s transfer of his title, can not recover upon a transfer by him of defendant’s title to the cattle, which defendant is estopped to deny. Estoppel in pais must be specially pleaded. Noble v. Blount, 77 Mo. 242; Bray v. Marshall, 75 Mo. 330. The circuit court, therefore, erred in instructing the jury on the theory of estoppel. Under the pleadings the plaintiff’s right to recover should have been confined to the title of Couch.

For this reason the judgment herein will be reversed and the cause remanded. But, as the case will be tried again, we feel called upon to determine certain other questions presented and argued.

4. The affidavits attached to the mortgages were hearsay evidence and should not have been admitted.

5. The real question in this case, and the question ■which has been argued at most length by the plaintiff is, in whom was the legal title to the native cattle when delivered to Conch, if he, in fact, as testified by defendant, with defendant’s money and as defendant’s agent, but in his own name, purchased them from Price ? , The plaintiff insists that, the legal title was in Couch and that he held the cattle upon a constructive trust for defendant who had simply a beneficiary’s interest therein.

A principal can maintain an action in his own name on a written contract made by his agent, in his (the agent’s) name without disclosing the name of the principal. The relation of the principal and agent may be shown by parol evidence. Briggs v. Munchon, 56 Mo. 473; Wharton on Agency and Agents, sects. 403 and 404; Ewell’s Evans on Agency 396.

Referring to and relying upon the general rule “that the action should be brought in the name of the party whose legal interest has been affected, against the party who committed the injury,” the court in Beebe v. Robert (12 Wend. 417), said that the undisclosed principal could maintain an action, upon a contract of purchase of goods made by his agent, for a breach of warranty. And the supreme court of Maine in Gushing v. Rice (46 Mo. 309), decided in favor of the same rule, giving among other reasons therefor that “the damages, which ground the action, follow the property.” Under the facts assumed in the' above question, for any damage on account of a breach of warranty the defendant could have maintained an action against Price, although Price supposed that he was dealing with Couch alone. And upon a full compliance by Couch with his part of the contract, had Price refused to deliver the cattle, the defendant could have maintained replevin for them. Conklin v. Leeds, 58 Ill. 179.

It would, therefore, seem that the legal 'title, under the assumed facts, was in the defendant and that the possession of Couch his agent was his possession. But upon this identical question there is direct authority. In Lowry & Bruce v. Beckner (5 B. Monroe 44), it is expressly held that as soon as the agent, closed the contract and paid for the personal property with his principal’s money the title to the property vested in the principal. It is there said “theact of the agent, therefore, in taking the bill of sale to himself, originated in bad faith, and was fraudulent and void, and could not have the effect to divest Beckner” (the principal) “of his title, or deprive him of his right to sue for the horse. No writing was necessary to pass the title. No analogy exists, therefore, between this case, and the case of the purchase or exchange for real estate * * Anri to the same effect is Waldo v. Peck (7 Vt. 437.) Upon a consideration of these authorities and these- principles we feel convinced that, if the defendant employed Couch to buy for him as his agent the Price cattle, and supplied the necessary money therefor, and that Couch purchased those cattle in his own name, and paid for them with tfye defendant’s money, the legal title to the cattle upon their delivery to Couch was in the defendant.

It may be, and we are inclined to so think, that had Couch purchased with defendant’s money, in violation of his employment, a certain number of horses or any other personal property than the Price cattle, the legal title to the horses or other property would have been in Couch with a trust in favor of defendant; and that defendant could have enforced his equitable interest in such horses or other property only in a court of equity. In such case the money of defendant would have been converted by Couch to his own use. The legal title to the property would have been in Couch. The equitable title would have been in the defendant. Couch could not have required the defendant to receive the property. Defendant could have compelled Couch in a proceding in equity to transfer the property to himself, but could not have maintained an action at law for the possession of the property. But, if Couch purchased the Price cattle and paid therefor with defendant’s money, even if Couch had taken a bill of sale for said cattle in his own name, the defendant could not have refused to receive them from Couch; and, therefore, it necessarily follows that the defendant could have maintained replevin for the possession of said cattle had Couch refused to deliver such possession to him.

6. Should the petition be properly amended, upon a new trial it will be proper for the plaintiff to prove that the defendant is estopped to deny the right of Couch to mortgage and sell said cattle as his own property. If the defendant, by his own contract or agreement with Couch, authorized Couch to sell as well as to buy said cattle, and Couch mortgaged the cattle to plaintiff, who acted in good faith, thinking that Couch was their real owner, and being ignorant of the actual facts, then the defendant would be estopped to deny the validity of the mortgage. Or, if Couch was only authorized to buy the said cattle and not to sell them, still, if the defendant knowingly permitted him to act and treat the cattle as their real owner, with the power as such owner to dispose of them, and he mortgaged them to the plaintiff, who acted in good faith, believing Couch to be the real owner and being ignorant of the actual facts, the defendant would be estopped to deny the validity of the mortgage. But the mere possession of the cattle by Couch did not authorize him to mortgage or sell the cattle as his own, and would not estop the defendant from setting up his title to them in this action. Wells on Replevin, sect. 212; Coville v. Hill, 4 Denio 327; Hotchkiss v. Hunt, 49 Me. 213.

7. The plaintiff suggests that because Couch was to receive one half of the net profits realized from the cattle as his compensation for buying and handling them, that he was defendant’s partner in the cattle, and as such partner had the power to mortgage or sell them. The fact that Couch was to be paid, as compensation for his agency, one-half of the net profits, did not constitute him a partner of defendant. Wiggins v. Graham, 51 Mo. 20; Campbell et al v. Dent, 54 Mo. 332; Donnell v. Harshe, 67 Mo. 173; Musser v. Brink, 68 Mo. 249; Sharpe v. Johnston, 76 Mo. 660. And, besides, one partner has no right to pay his individual debt with the property of the partnership. Ferguson v. Thatcher, 79 Mo. 514.

The judgment of the circuit court is reversed and the cause is remanded.

All concur.