Johnson v. Geo. C. Bagley Elevator Co.

156 N.W. 76, 36 S.D. 531, 1916 S.D. LEXIS 160

• Court: South Dakota Supreme Court
• Decided: February 1, 1916
• Docket: File No. 3850
• Status: Published

Opinion

WHITING, J.

The following case is presented by the stipulation of facts and' the trial court’s findings herein-: A., the -owner of certain land, leased the same t-o B., who thereafter had in his possession certain grain belonging to- A. C. -was a grain -buying and storing corporation at a neighboring market to-wn, and C. was informed by A. that it should store all of A.’s grain delivered to it, an-d should issue storage -Checks therefor and deliver the sam-e tó A. A. instructed B. to- -haul his grain to- C. and to- take storage tickets therefor. Before B. delivered A.’s grain to C., B. informed C. that he (B.) would deliver A.’s grain to- it and that it should issue storage tickets therefor. Pie- further informed- C. that his (B.’s) hired man, D., would deliver the said grain. D. delivered A.’s grain to C., and C. knew -that it was A.’s grain w-hen it w-as so -delivered. D., without any -authority therefor, demanded of C. -that it deliver to -him a cash ticket for such grain, an-d' C. delivered su-ch -cash ticket to D. contrary to- the previous' instructions received from A. and B., and knowing that the party to whom such- ticket -was delivered- was not A. S-aid cash ticket was issued in the n-arne of A., and D. forged the name of' A. on the back of said ticket and -drew the money on the same-. A. demanded- storage tickets for said- grain; C. refused to- give him such tickets; and A. sued for -the grain o-r its value. The trial court rendered judgment in favor of A. for the value of suc-h grain, C. being unable to -deliver possession thereof to A. From such judgment .and an order -denying -a new trial C. Appeals.

[1] C. -contends that D. was the subagent of A. In this C. is clearly in -error. D. was (but the mere servant of B., without any authority, either actual -or ostensible, to enter into a contractual 'relation with C. -o-n behalf of A.; th'e limit of his power was merely to deliver the grain, and of this fact C. had been fully advised. Sections 1476 and 1656, C. C.; 2 C. J. 423.

[2] Appellant urges that, .inasmuch as C. acted in good faith, and one of two innocent parties must suffer, he should suffer who made it possible for bis agent to defraud him; and it contends that A. made it possible for D. to defraud him. Not only was D. not an agent of A. -but A. did everything that a reasonably prudent man could and should do to advise C., and it was solely through the negligence of C. that it became possible for D. to commit the wrong. Against the clear instructions of both A. and B., C. saw fit to accept D.’s statement in regard to his authority to- sell the grain; it accepted such statement at its own peril. Shull v. New Birdsall Co., 15 S. D. 8, 86 N. W. 654; 2 C. J. 562-564.

The judgment and order appealed from are affirmed.