MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought to recover damages for the breach of a written contract, under the terms of which, it is alleged, defendant on November 27,1899, sold to plaintiffs, as copartners, certain cattle and agreed to deliver them at any time from May 1 to 15, 1900, at a designated place in Dawson county. It is alleged by plaintiffs that they negotiated the contract with defendant through one Courtney, defendant’s agent, duly empowered to act in that behalf; that they made a cash payment [146]*146of $5,000 required by its terms, which was received and retained by the defendant; that they were ready and able to make payment of the balance of the purchase price at the time and place of delivery, as well as to comply with all the terms and conditions of the contract to be by them performed; but that defendant failed to perform the contract on his part by refusing to deliver the cattle át the time and place agreed upon, or at all, to the plaintiffs’ damage in the sum of $15,000. A copy of the contract is set forth in the complaint. It recites the different classes of cattle sold and the price per head to be paid for each class, and includes all the cattle bearing the brands of the defendant at the date of its execution, “with the calves thrown in and not to be paid for.” The receipt of $5,000 in cash is acknowledged. The answer is a general denial. A trial upon the issues thus presented resulted in a verdict and judgment for defendant. By a general order the court granted plaintiffs’ motion for a new trial. From this order the defendant has appealed.
The grounds of the motion are errors of law in rulings upon the admission and exclusion of evidence, and in instructing the jury, and insufficiency of the evidence to justify the verdict. Since the order does not designate upon which of the grounds mentioned it was made, it must be affirmed if justified by any one of them.
Respondents insist that the granting of a motion for a new trial rests entirely in the discretion of the trial court, and that for that reason the order appealed from should be affirmed. For errors at law prejudicially affecting the rights of the movant, a new trial may be demanded as a matter of right. In such ease'the court has no discretion, if the error is made manifest. (State v. Schnepel, 23 Mont. 523, 58 Pac. 868.) When the ground is newly discovered evidence or insufficiency of the evidence to justify the verdict, the motion is addressed to the discretionary power of the court, and its action in the premises will not be disturbed by the appellate court unless it appears that there has been a clear abuse of this power. (State v. Schnepel, supra: [147]*147In re Colbert’s Estate, 31 Mont. 477, 107 Am. St. Rep. 439, 78 Pac. 971, 80 Pac. 248; Gillies v. Clarke Fork Coal M. Co., 32 Mont. 320, 80 Pac. 370; Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; Harrington v. Butte & Boston M. Co., 27 Mont. 1, 69 Pac. 102; Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; State v. Landry, 29 Mont. 218, 74 Pac. 418.)
An examination of the record reveals the fact that upon every issue presented by the pleadings the evidence introduced at the trial involves an irreconcilable conflict. For this reason alone, we are of the opinion that the order of the district court was properly made.
It appears from the testimony introduced by the plaintiffs that during the latter part of August, 1899, the defendant, being desirous of closing out his cattle interests in Dawson county, went to one "William Courtney, a broker in Miles City, Custer county, and listed his stock with him for sale, stating to him the character of the different classes of cattle he had and the prices he asked. He thereupon dictated a circular letter, to be addressed by the broker to various persons who might desire to buy his cattle, stating the terms upon which he wished to sell. Among other things this circular letter stated the number of steers of various ages owned by the defendant, and also of cows and heifers. It also stated that there had been branded the preceding spring one hundred and forty-four calves, that there would probably be branded that fall fifty or sixty more, and that under the terms of the sale the calves would be thrown in. A cash payment of $5 per head, amounting to $5,000, was required. The place of delivery designated was Miles City stockyards. He thereupon went to his home, some one hundred and twenty-five miles away, in Dawson county. In the meantime, and prior to November 24th, there was some correspondence between himself and Courtney as to the sale of the cattle; and on or about November 13th Courtney wrote the defendant that he had possibly secured a purchaser for his cattle to be delivered at a designated place in Dawson county on or about May 15th, upon the conditions and at the prices fixed by the defendant. [148]*148On November 24th the defendant went to Miles City and saw Courtney. According to Courtney’s statement, he was then told by the defendant to close up the sale. On leaving Miles City the defendant met plaintiff Case a short distance from the town, and, in a conversation then had with him with reference to the purchase of the cattle, told him to go to Courtney and buy the cattle. On November 27th, after negotiations between Case and Courtney extending over two or. three days, Case bought the cattle at the stipulated price and paid the $5,000 required by the defendant. This he paid to Courtney by his cheek, which was afterward deposited by Courtney in one of the banks in Miles City, and paid to the credit of the defendant. The memorandum set forth in the complaint was then drawn by Courtney and signed by the plaintiff Case on behalf of himself and his co-plaintiff, and by Courtney for the defendant. Courtney immediately notified the defendant by mail, inclosing a copy of the contract. So the matter stood until about December 29th. The defendant then visited Miles City and called on plaintiff Case. Referring to the contract of sale entered into by Courtney in his behalf, he said to Case that he would not deliver the cattle under the terms of the contract, unless Case and his coplaintiff would pay him an additional $5 per head for one class of cattle designated in the contract as Colorado cattle. This additional demand amounted to $1,30(1 Case refused to make this concession. Thereupon Kramer notified the bank that he would not accept the money and also wrote to plaintiffs that he did not intend to abide by the contract. At the same time he also wrote Courtney saying that he would not ratify the contract and that his reason therefor was that in making it Courtney had not obeyed his instructions. Kramer denied that he had a conversation with Case on November 24th or at any other time, referring him to Courtney. He denied that he ever authorized Courtney to enter into any contract of any character or description for . him with reference to the cattle, or to accept any payment for him of a part of the purchase price. He stated that he employed Courtney for the sole purpose of finding him a purchaser with whom he intended to arrange the terms of the sale himself, with[149]*149out the intervention of any agent. It. does not appear that Kramer specially authorized Courtney to enter into a written contract, nor that he indicated how the cash payment should be made. Upon these facts we do not think the court abused its discretion in granting the order.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought to recover damages for the breach of a written contract, under the terms of which, it is alleged, defendant on November 27,1899, sold to plaintiffs, as copartners, certain cattle and agreed to deliver them at any time from May 1 to 15, 1900, at a designated place in Dawson county. It is alleged by plaintiffs that they negotiated the contract with defendant through one Courtney, defendant’s agent, duly empowered to act in that behalf; that they made a cash payment [146]*146of $5,000 required by its terms, which was received and retained by the defendant; that they were ready and able to make payment of the balance of the purchase price at the time and place of delivery, as well as to comply with all the terms and conditions of the contract to be by them performed; but that defendant failed to perform the contract on his part by refusing to deliver the cattle át the time and place agreed upon, or at all, to the plaintiffs’ damage in the sum of $15,000. A copy of the contract is set forth in the complaint. It recites the different classes of cattle sold and the price per head to be paid for each class, and includes all the cattle bearing the brands of the defendant at the date of its execution, “with the calves thrown in and not to be paid for.” The receipt of $5,000 in cash is acknowledged. The answer is a general denial. A trial upon the issues thus presented resulted in a verdict and judgment for defendant. By a general order the court granted plaintiffs’ motion for a new trial. From this order the defendant has appealed.
The grounds of the motion are errors of law in rulings upon the admission and exclusion of evidence, and in instructing the jury, and insufficiency of the evidence to justify the verdict. Since the order does not designate upon which of the grounds mentioned it was made, it must be affirmed if justified by any one of them.
Respondents insist that the granting of a motion for a new trial rests entirely in the discretion of the trial court, and that for that reason the order appealed from should be affirmed. For errors at law prejudicially affecting the rights of the movant, a new trial may be demanded as a matter of right. In such ease'the court has no discretion, if the error is made manifest. (State v. Schnepel, 23 Mont. 523, 58 Pac. 868.) When the ground is newly discovered evidence or insufficiency of the evidence to justify the verdict, the motion is addressed to the discretionary power of the court, and its action in the premises will not be disturbed by the appellate court unless it appears that there has been a clear abuse of this power. (State v. Schnepel, supra: [147]*147In re Colbert’s Estate, 31 Mont. 477, 107 Am. St. Rep. 439, 78 Pac. 971, 80 Pac. 248; Gillies v. Clarke Fork Coal M. Co., 32 Mont. 320, 80 Pac. 370; Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; Harrington v. Butte & Boston M. Co., 27 Mont. 1, 69 Pac. 102; Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; State v. Landry, 29 Mont. 218, 74 Pac. 418.)
An examination of the record reveals the fact that upon every issue presented by the pleadings the evidence introduced at the trial involves an irreconcilable conflict. For this reason alone, we are of the opinion that the order of the district court was properly made.
It appears from the testimony introduced by the plaintiffs that during the latter part of August, 1899, the defendant, being desirous of closing out his cattle interests in Dawson county, went to one "William Courtney, a broker in Miles City, Custer county, and listed his stock with him for sale, stating to him the character of the different classes of cattle he had and the prices he asked. He thereupon dictated a circular letter, to be addressed by the broker to various persons who might desire to buy his cattle, stating the terms upon which he wished to sell. Among other things this circular letter stated the number of steers of various ages owned by the defendant, and also of cows and heifers. It also stated that there had been branded the preceding spring one hundred and forty-four calves, that there would probably be branded that fall fifty or sixty more, and that under the terms of the sale the calves would be thrown in. A cash payment of $5 per head, amounting to $5,000, was required. The place of delivery designated was Miles City stockyards. He thereupon went to his home, some one hundred and twenty-five miles away, in Dawson county. In the meantime, and prior to November 24th, there was some correspondence between himself and Courtney as to the sale of the cattle; and on or about November 13th Courtney wrote the defendant that he had possibly secured a purchaser for his cattle to be delivered at a designated place in Dawson county on or about May 15th, upon the conditions and at the prices fixed by the defendant. [148]*148On November 24th the defendant went to Miles City and saw Courtney. According to Courtney’s statement, he was then told by the defendant to close up the sale. On leaving Miles City the defendant met plaintiff Case a short distance from the town, and, in a conversation then had with him with reference to the purchase of the cattle, told him to go to Courtney and buy the cattle. On November 27th, after negotiations between Case and Courtney extending over two or. three days, Case bought the cattle at the stipulated price and paid the $5,000 required by the defendant. This he paid to Courtney by his cheek, which was afterward deposited by Courtney in one of the banks in Miles City, and paid to the credit of the defendant. The memorandum set forth in the complaint was then drawn by Courtney and signed by the plaintiff Case on behalf of himself and his co-plaintiff, and by Courtney for the defendant. Courtney immediately notified the defendant by mail, inclosing a copy of the contract. So the matter stood until about December 29th. The defendant then visited Miles City and called on plaintiff Case. Referring to the contract of sale entered into by Courtney in his behalf, he said to Case that he would not deliver the cattle under the terms of the contract, unless Case and his coplaintiff would pay him an additional $5 per head for one class of cattle designated in the contract as Colorado cattle. This additional demand amounted to $1,30(1 Case refused to make this concession. Thereupon Kramer notified the bank that he would not accept the money and also wrote to plaintiffs that he did not intend to abide by the contract. At the same time he also wrote Courtney saying that he would not ratify the contract and that his reason therefor was that in making it Courtney had not obeyed his instructions. Kramer denied that he had a conversation with Case on November 24th or at any other time, referring him to Courtney. He denied that he ever authorized Courtney to enter into any contract of any character or description for . him with reference to the cattle, or to accept any payment for him of a part of the purchase price. He stated that he employed Courtney for the sole purpose of finding him a purchaser with whom he intended to arrange the terms of the sale himself, with[149]*149out the intervention of any agent. It. does not appear that Kramer specially authorized Courtney to enter into a written contract, nor that he indicated how the cash payment should be made. Upon these facts we do not think the court abused its discretion in granting the order.
Counsel say, however, that under section 3276 of the Code of Civil Procedure, and sections 2185 and 2340 of the Civil Code, the contract of sale, in order to be valid, must have been in writing and signed by Kramer or his duly authorized agent, and since it does not appear that Courtney’s authority was in writing, the contract as made by him was void. In support of this contention they cite also section 3085 of the Civil Code. This section declares: “An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. ’ ’ The fallacy involved in the contention is the assumption that the contract falls in the class of those that must be evidenced by writing, under the sections of the Civil Code and of the Code of Civil Procedure, supra.
Under the instructions given by Kramer to Courtney, a part of the purchase price was to be paid down, and this was done. This brings the agreement clearly within the exception provided for in the sections cited with reference to the sale of chattels. Section '3085, supra, therefore has no application. If the contract had been negotiated by Kramer himself and had been oral, the part payment to him would have brought it within the exception. Since this is so, oral authority to Courtney to act for him in the making of the contract was valid; for under section 3085, supra, Kramer could orally authorize Courtney to make for him any contract which he himself might make orally. Nor was the relation of the parties or the authority of Courtney changed by the fact that Courtney, doubtless for safety, drew up and signed the memorandum for Kramer. It cast no greater burden upon Kramer than it would had it been left to rest entirely upon oral evidence. If Courtney had authority to act for Kramer, as this evidence tends to show, the latter could not, [150]*150after the agreement was made, repudiate it and deny its liability.
Counsel also contend that Courtney had no authority to accept Case’s check to meet the cash payment required. If Case’s testimony touching his conversation with Kramer on November 24th, in which he was told to go to Courtney to make the purchase, is to be accepted as true — and for present purposes it must be so accepted — Courtney had ostensible authority to negotiate the sale, and in connection therewith to do everything necessary, proper and usual in the ordinary course of business for effecting the purpose of his agency. (Civ. Code, secs. 3093, 3095.) But we are not now called on to inquire whether it is usual or customary in such transactions to make .payments in checks. The cheek given by Case and accepted by Courtney was afterward actually cashed by the drawee, and the amount thereof paid by Courtney to the credit of Kramer. It is the rule that an agent, under his authority to receive payment, may not accept anything but cash. (1 Am. & Eng. Ency. of Law, 2d ed., 1003; Mecnem on Agency, 321.) Yet, if the check received is actually paid by the drawee, this constitutes payment to the principal, even though the agent misappropriates the fund and converts it to his own use. (Mechem on Agency, 382; Sage v. Burton, 84 Hun, 267, 32 N. Y. Supp. 1122; Kansas City etc. R. R. Co. v. Ivy Leaf Coal Co., 97 Ala. 705, 12 South. 395; Harbach v. Colvin, 73 Iowa, 638, 35 N. W. 663; Bardwell v. American Express Co., 35 Minn. 344, 28 N. W. 925.) Nor is it of importance that the check made payable to the order of Kramer was indorsed in his name for collection by Courtney without special authority. The money went to Kramer’s account, and thus he actually received it.
Appellants contend, further, that the specifications are not sufficient to point out the particulars wherein the evidence is alleged to be insufficient to justify the verdict. The objections made to them are general and to the effect that, instead of setting out what the evidence does not show, they urge what the evidence does show. We think, however, that the specifications [151]*151are sufficient to give to the defendant notice, and to advise the court in plain language of the matters that would be urged upon the hearing of the motion. Such being the case, the order should not be reversed on the ground of their insufficiency. (Gillies v. Clarke Fork Coal M. Co., supra, and eases cited therein.)
Since, for the reasons stated, it was within the sound discretion of the district court to direct a new trial, it is not necessary to discuss the other points presented. The order is affirmed.
Affirmed.
Mr. Justice Holloway concurs.
Mr. Justice Milburn, being disqualified, did not hear the argument and takes no part in the foregoing opinion.