Bachman v. Gerer

HONORABLE ROY E. AYERS, District Judge,

sitting in place of MR. CHIEF JUSTICE BRANTLY, disqualified, delivered the opinion of the court.

Plaintiff brought this action on May 3, 1919, in the district court of Ravalli county, for $626.05, an alleged balance due him for 86,615 pounds of potatoes sold and delivered by him to defendant on January 11, 1919, at an agreed price of $1,30 per hundredweight. Defendant admits the deliverey of the potatoes, but alleges that in the transaction he acted solely as the agent and manager of the Equity Co-operative Association of Hamilton, a corporation engaged, among other things, in handling farm produce on commission, all of which plaintiff well knew, and that defendant, .in the course of the company's business, and for it, did agree with plaintiff to handle said potatoes for a commission of ten cents per hundredweight, and that it would pay plaintiff for them as soon as returns were had from the shipment thereof; that on March 6, 1919, defendant, as manager and agent of the company, and for it, made and rendered an “account of sales” of the potatoes, and that he delivered to plaintiff the company’s check for the amount due him, after deducting commissions, transportation1 charges, and a small account which plaintiff owed the company; that plaintiff retained the said “account of sales” without objection, and indorsed and cashed the company’s cheek and kept the money obtained thereon.

At the trial, after plaintiff had rested, defendant made a motion for a nonsuit, which was overruled. The jury returned a verdict against defendant for $606.05, upon which judgment was entered. A motion for a new trial was overruled, and from the judgment and order overruling said motion these appeals are prosecuted.

The first error specified by defendant, and the only one necessary for the determination of this case, is that the trial court erred in not granting his motion for nonsuit.

Plaintiff was a stockholder in the Equity Co-operative Association of Hamilton. He knew that the defendant was its manager, and that it operated a store at Hamilton. Prior to January 11, plaintiff had attended a meeting of the Equity Association when the proposition of it handling potatoes was discussed. On January 11 he had a conversation with defendant in the Equity store at Hamilton, which resulted in plaintiff’s delivery of 86,615 pounds of potatoes into two railroad ears at Grantsdale. Plaintiff testified that in that conversation the pronoun “I” was always used by defendant, and that the Equity Association was never mentioned.

Plaintiff, who was the only witness offered in his behalf on his case in chief, testified at some length as to the details of the conversation, and with reference to the alleged commission deal, all of which is immaterial if the transaction was with the Equity Association.

That the charging of defendant personally with the transaction, whether it be a sale or a commission deal, was an afterthought of plaintiff, is the only conclusion to be reached from his testimony. In addition to plaintiff’s knowledge of the proposition of handling potatoes by the company, and that defendant was manager for the company, he had no independent knowledge that defendant was buying or handling potatoes on his own account. The deal was made at the place of business of the company, and there is no testimony to show that any other than the company’s business was •transacted there. On January 15 a receipt for the first car of potatoes (which was the only receipt plaintiff received for the delivery of potatoes) was delivered to him, and which was in the words and figures following:

“Hamilton, Montana, Jan. 15, 1919.

“It is understood and agreed that the Equity is to pay for the fruits or produce listed below as soon as returns are made from the sale thereof after shipment, the Equity to take none of the risks of shipment nor stand any loss due to difference or claim, either in regard to quantity or quality, the Equity acting solely as agent of shipper.

“Received of J. A. Bachman, A. R. T. Co. 13735, the following listed fruits or produce for shipment or sale: .376 sks. —43,457 lbs.—potatoes.

“Equity Co-op. Ass’n, per B. G. S.”

On March 8 plaintiff received an “account of sales” from the Equity Association, detailing the initials and numbers of the cars, the grades, weights and prices of all his potatoes and the transportation charges and commissions; an itemized statement of the Equity Association showing his store account with the company and the amount due him from the proceeds of the potatoes after deducting transportation charges, commissions, etc., and his store account, which amount due him after said deductions was $447.87 and there was inclosed with the “account of sales” and itemized statement the Equity Association’s check for $447.87.

Plaintiff admitted that he recognized that the cars mentioned in the “account of sales” were the cars in which his potatoes were loaded, and that the “account of sales” referred to his potatoes, and that he knew the contents of the “account of sales” and the itemized statement, and that he cashed the check and kept the proceeds thereof. Later plaintiff received the following letter:

“Hamilton, Montana, 3-29-19.

“J. A. Bachman, City—Dear Sir: Inclosed cheek for $6.72 overcharge frt. on car 13235. I inclose letter which is self-explanatory. Respy., Equity Co-operative Association, An-son,”—and with it he received a letter from the Chicago, Burlington & Quiney Railroad Company, written from Kansas City, Missouri, explaining the overcharge mentioned in the above letter, and also with it he received the Equity Association’s check for $6.72, which he cashed on April 5 and retained the proceeds thereof.

Although having seen defendant before he instituted this action, plaintiff testified: “I did not tell Mr. Gerer that there was a mistake in the receipts.” And there is no pretense on the part of plaintiff that he informed defendant that he was holding him personally liable. The use of the pronoun “I” by defendant is the only evidence even tending to connect him personally with the transaction other than plaintiff’s bald statement that he dealt with him personally and not as manager or agent of the company. This positive assertion cannot be taken alone without regard to the rest of his testimony. The legal value of the evidence of a witness is to be determined by its entire contents and not by any single feature, the effect of which may be destroyed by his admissions or contradictions. (Rood v. Murray, 50 Mont. 240, 146 Pac. 541.)

In the instant case plaintiff’s own testimony shows that he was dealing with the known agent of the Equity Co-operative Association of Hamilton, and without informing defendant that he intended to deal with him, and without having any expression of intention from defendant that he (defendant) intended to deal personally rather than for his principal, plaintiff seeks to hold defendant individually liable. This is contrary to the well-established principle of law, that where one deals with the agent of a known principal touching on a matter within the scope of the agency he cannot hold the agent, in the absence of satisfactory proof of an intention on the part' of the agent to substitute his personal liability for that of the principal. (Hall v. Lauderdale, 46 N. Y. 70; Rood v. Murray, supra; 31 Cyc. 1552.) The prominence of the pronoun “I” as used by defendant, in view of all of the other testimony of plaintiff, does not remove this presumption. (Yancey v. Northern Pac. Ry. Co., 42 Mont. 342, 112 Pac. 533; Johnson v. Baatz, 62 Mont. 344, 205 Pac. 212.) On the contrary, it affirmatively shows that defendant had no intention of substituting his personal liability for that of his principal, and also that plaintiff knew he was dealing with defendant as the agent of the company; hence the transaction was that of the company. No other conclusion could be drawn. On plaintiff’s testimony no judgment against defendant could stand.

The judgment and order are reversed, with directions to enter judgment for the defendant.

Beversed.

Associate Justices Farr, Cooper, Holloway and Galen concur.