By the Court,
Safford, J.
Robert Graham, plaintiff in the court below, brought [406]*406Ms action to recover the value of a certain five-hundred-dollar United States bond, of the description commonly known as “seven-thirties.” He alleged in his petition that the bond was of the value of five hundred and forty dollars ; that 'he was the owner thereof on the 11th day of June, 1866; and that Rice S. McCubbin,- the defendant, on the 20th day of June, 1866, wrongfully converted the same to his own use and benefit.
McCubbin interposed two defenses : first, a general denial; and second, a former recovery of the value of the said United States bond by the plaintiff, in the case of Robert Graham v. Augustus A. Fleming, tried in the district court of Atchison county at the June term, A. D. 1866. Said second defense was in these words: “And for defense number two, defendant says that the said United States bond referred to in said petition was paid to defendant by said plaintiff, and by said defendant received in the capacity of agent only, for one A. A. Fleming; that' said plaintiff paid and delivered the said bond to defendant as part payment for the purchase of certain real estate in- Atchison county, then owned by said Fleming, and for the sale of which said defendant was acting merely as agent for said Fleming — all of which was well known by said plaintiff. Defendant further says that he delivered the said bond to said Fleming, in pursuance of said agreement, and that said plaintiff afterwards brought an action in this court against the said Fleming for the recovery of damages for the refusal, on the part of said Fleming, to complete said sale, and execute a deed to plaintiff of said real estate, and among other damages he included and sued for the value of said bond, and recovered a judgment therefor against said Fleming.”
[407]*407Graham replied, denying all of the allegations of the answer. Upon the issues thus joined, trial was had, and a verdict and judgment rendered in favor of plaintiff for the sum of five hundred and forty dollars and costs.
Defendant moved for a new trial, which was overruled, and he now brings the case here for review. Several' errors are alleged and set out by the bills of exceptions, among which are the following: It is claimed that the court erred, both in refusing certain instructions asked for by McCubbin, and in giving others to which he excepted, all of which are set out. The bills of exceptions do not state in so many words that they contain all the instructions asked for or given by the court to the jury upon the trial, of this cause, but, judging from the course of argument pursued by counsel in their briefs, as well as from the arrangement of the instructions in the record, we think that such must be the case. The following are the instructions asked for by McCubbin, and refused by the court:
“Instruction No. 1. — If the jury find, from the evidence, that the five-hundred-dollar United States bond, for which this suit is brought, is the same five hundred dollars by plaintiff alleged to have been paid to A. A. Fleming, as part payment for real estate known as Roberts’s addition to the city of Atchison, and which was set forth in his petition against said Fleming, then the said five-hundred-dollar bond is merged in the judgment, and they must find for the defendant.”
The issue to which this instruction was evidently intended to go, was fairly tendered in the pleadings.
The record also shows that the proceedings in the case of Graham v. Fleming were sufficiently before [408]*408the jury in the case, to enable them to understand the basis of the defendant’s claim ; that the five-hundred-dollar bond sued for was the same five hundred dollars mentioned as having been paid to Fleming in that. case, and 'recovered for. It also shows that evidence was given tending to prove that the allegations of the defendant in this behalf were true. Besides, the law flying the measure of damages in cases of breach of contract for the sale of land on the part of the vendor, would seem/to- require that the amount of money actually paid on the contract, as well as the amount yet due, and tendered to be paid, should go into the computation, in order to ascertain the amount in which the vendor had been damaged by the breach. Adhering to this rule, the conclusion in this instruction would seem to follow the premises. (SedgwicJc 189, and cases there cited.) Such being the case, we think that the instruction was substantially correct, and applicable to the case presented by the pleadings and evidence.
“ Instruction No. 2. — If the jury find, from the evidence, thatR. S. McCubbin received said United States bond merely as the agent of said Fleming, for the use and benefit of said Fleming, disclosing his principal at the time, then McCubbin is not personally liable to plaintiff, and they mast find for the defendant.”
It is claimed jn the answer of McCubbin, and he offered evidence tending to prove that the United States bond was paid by plaintiff to defendant merely as agent for A. A. Fleming, and for his use and benefit, and for the purchase of certain real estate, to be conveyed by said Fleming to said plaintiff; and that said plaintiff had recovered judgment for three thousand dollars against said Fleming, for failing to convey the real estate which McCubbin, as his agent, had agreed [409]*409should "be so conveyed. All this appears from the record before us, and we confess to inability to perceive any good reason why the court refused the instruction, under the circumstances. It was most certainly pertinent to the issue, and embodied a sound principle of law applicable to the evidence.
If McCubbin was acting merely as the agent of Fleming, and authorized to bind him in the transaction concerning the real estate, as he assumed to do, and-as the record shows he was held by the court and “jury, in the case of Graham v. Fleming, to have done, then the plaintiff had no-more'claim for anything done in that capacity of Fleming’s agent, and within the scope of his agency, as against McCubbin, than he would have against a stranger. As to McCubbin’s acts for and in behalf of Fleming, his agency being established, they were Fleming’s acts, for which he alone would be liable to plaintiff.
This was the rule of law asked to be given to the jury in behalf of defendant. It was error to deny it.
But it'is claimed that in the instructions given, the court went as far as the law would allow. We think not. The court said to the jury:
“Instruction No. 3. — If the jury find, from the evidence, that B. S. McCubbin received said U. S. bond with plaintiff’s knowledge and consent, merely as the agent of Fleming, and for his use and benefit, and paid said bond, or its equivalent, to Fleming, then he (McCubbin) is not liable to plaintiff.”
If all the other facts set out in this instruction were true, we think that the addition of the words “and paid said bond, or its equivalent, to Fleming,” were more than superfluous. They limited the proposition intended to be embodied in the instruction, [410]*410to the injury of the defendant. . If McCubbin was .the agent of Fleming, he was liable to him alone, if he did not pay over the money belonging to Fleming, and most assuredly not to .the plaintiff.
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By the Court,
Safford, J.
Robert Graham, plaintiff in the court below, brought [406]*406Ms action to recover the value of a certain five-hundred-dollar United States bond, of the description commonly known as “seven-thirties.” He alleged in his petition that the bond was of the value of five hundred and forty dollars ; that 'he was the owner thereof on the 11th day of June, 1866; and that Rice S. McCubbin,- the defendant, on the 20th day of June, 1866, wrongfully converted the same to his own use and benefit.
McCubbin interposed two defenses : first, a general denial; and second, a former recovery of the value of the said United States bond by the plaintiff, in the case of Robert Graham v. Augustus A. Fleming, tried in the district court of Atchison county at the June term, A. D. 1866. Said second defense was in these words: “And for defense number two, defendant says that the said United States bond referred to in said petition was paid to defendant by said plaintiff, and by said defendant received in the capacity of agent only, for one A. A. Fleming; that' said plaintiff paid and delivered the said bond to defendant as part payment for the purchase of certain real estate in- Atchison county, then owned by said Fleming, and for the sale of which said defendant was acting merely as agent for said Fleming — all of which was well known by said plaintiff. Defendant further says that he delivered the said bond to said Fleming, in pursuance of said agreement, and that said plaintiff afterwards brought an action in this court against the said Fleming for the recovery of damages for the refusal, on the part of said Fleming, to complete said sale, and execute a deed to plaintiff of said real estate, and among other damages he included and sued for the value of said bond, and recovered a judgment therefor against said Fleming.”
[407]*407Graham replied, denying all of the allegations of the answer. Upon the issues thus joined, trial was had, and a verdict and judgment rendered in favor of plaintiff for the sum of five hundred and forty dollars and costs.
Defendant moved for a new trial, which was overruled, and he now brings the case here for review. Several' errors are alleged and set out by the bills of exceptions, among which are the following: It is claimed that the court erred, both in refusing certain instructions asked for by McCubbin, and in giving others to which he excepted, all of which are set out. The bills of exceptions do not state in so many words that they contain all the instructions asked for or given by the court to the jury upon the trial, of this cause, but, judging from the course of argument pursued by counsel in their briefs, as well as from the arrangement of the instructions in the record, we think that such must be the case. The following are the instructions asked for by McCubbin, and refused by the court:
“Instruction No. 1. — If the jury find, from the evidence, that the five-hundred-dollar United States bond, for which this suit is brought, is the same five hundred dollars by plaintiff alleged to have been paid to A. A. Fleming, as part payment for real estate known as Roberts’s addition to the city of Atchison, and which was set forth in his petition against said Fleming, then the said five-hundred-dollar bond is merged in the judgment, and they must find for the defendant.”
The issue to which this instruction was evidently intended to go, was fairly tendered in the pleadings.
The record also shows that the proceedings in the case of Graham v. Fleming were sufficiently before [408]*408the jury in the case, to enable them to understand the basis of the defendant’s claim ; that the five-hundred-dollar bond sued for was the same five hundred dollars mentioned as having been paid to Fleming in that. case, and 'recovered for. It also shows that evidence was given tending to prove that the allegations of the defendant in this behalf were true. Besides, the law flying the measure of damages in cases of breach of contract for the sale of land on the part of the vendor, would seem/to- require that the amount of money actually paid on the contract, as well as the amount yet due, and tendered to be paid, should go into the computation, in order to ascertain the amount in which the vendor had been damaged by the breach. Adhering to this rule, the conclusion in this instruction would seem to follow the premises. (SedgwicJc 189, and cases there cited.) Such being the case, we think that the instruction was substantially correct, and applicable to the case presented by the pleadings and evidence.
“ Instruction No. 2. — If the jury find, from the evidence, thatR. S. McCubbin received said United States bond merely as the agent of said Fleming, for the use and benefit of said Fleming, disclosing his principal at the time, then McCubbin is not personally liable to plaintiff, and they mast find for the defendant.”
It is claimed jn the answer of McCubbin, and he offered evidence tending to prove that the United States bond was paid by plaintiff to defendant merely as agent for A. A. Fleming, and for his use and benefit, and for the purchase of certain real estate, to be conveyed by said Fleming to said plaintiff; and that said plaintiff had recovered judgment for three thousand dollars against said Fleming, for failing to convey the real estate which McCubbin, as his agent, had agreed [409]*409should "be so conveyed. All this appears from the record before us, and we confess to inability to perceive any good reason why the court refused the instruction, under the circumstances. It was most certainly pertinent to the issue, and embodied a sound principle of law applicable to the evidence.
If McCubbin was acting merely as the agent of Fleming, and authorized to bind him in the transaction concerning the real estate, as he assumed to do, and-as the record shows he was held by the court and “jury, in the case of Graham v. Fleming, to have done, then the plaintiff had no-more'claim for anything done in that capacity of Fleming’s agent, and within the scope of his agency, as against McCubbin, than he would have against a stranger. As to McCubbin’s acts for and in behalf of Fleming, his agency being established, they were Fleming’s acts, for which he alone would be liable to plaintiff.
This was the rule of law asked to be given to the jury in behalf of defendant. It was error to deny it.
But it'is claimed that in the instructions given, the court went as far as the law would allow. We think not. The court said to the jury:
“Instruction No. 3. — If the jury find, from the evidence, that B. S. McCubbin received said U. S. bond with plaintiff’s knowledge and consent, merely as the agent of Fleming, and for his use and benefit, and paid said bond, or its equivalent, to Fleming, then he (McCubbin) is not liable to plaintiff.”
If all the other facts set out in this instruction were true, we think that the addition of the words “and paid said bond, or its equivalent, to Fleming,” were more than superfluous. They limited the proposition intended to be embodied in the instruction, [410]*410to the injury of the defendant. . If McCubbin was .the agent of Fleming, he was liable to him alone, if he did not pay over the money belonging to Fleming, and most assuredly not to .the plaintiff.
But this instruction, and the one following it, were undoubtedly sound propositions; but, as applicable to this case, they would have been equally sound had the limitation spoken of, as to payment of the bond to .Fleming, been entirely omitted. So, also, with regard to instruction No. 7; the clause respecting the payment of the bond in good faith, by McCubbin to” Fleming, should have, been left out.
The bill of exceptions further shows that, evidence having been offered on the part of both plaintiff and defendant, to support their respective claims, and on the part of defendant tending to show that the plaintiff refused to accept the $,700 bond for which this suit was brought, and that he did not offer to receive it from, or demand it of, McCubbin, until after the close of the trial in the case of Graham v. Fleming, and after the jury had retired, thereupon the court instructed the jury as follows:
“Instruction No. 5. — If the jury find, from the evidence, that defendant received the bond mentioned in plaintiff’s petition, from plaintiff, as agent for one Fleming, and that after Fleming had refused to receive the same, defendant deposited the same in the bank, subject to the order of plaintiff,'and afterwards refused to deliver the same to plaintiff, on demand, whilst it was in his possession, the jury must find for the plaintiff.
“Instruction No. 6. — If the jury believe, from the evidence, that the bond sued for was paid to McCubbin, as agent for Fleming, and Fleming refused to accept [411]*411the bond or money, and McCubbin notified Graham that Fleming had refused to receive it, and that he should hold it for Graham, or deposit it in the bank for Graham, and afterwards paid the same to Fleming without the consent of Graham, they ought to find for the plaintiff the value of the bond.”
To both of these instructions the defendant excepted, at the time.
We think that, under the circumstances, both of these instructions should have been refused. The case shows that at one time the bond was tendered back to Graham, but he refused to receive it, and brought his suit for damages on account of the failure of Fleming to carry out the sale made by McCubbin, as his agent. Having taken this course, and submitted his case to a jury, we think he was asking a great, deal of Fleming —or what was the same thing, of McCubbin, Fleming’s agent, as he (Graham) claimed — when he demanded the bond he had once refused to accept, and before Fleming could know the result of the suit against him. Besides, we do not think the conclusions of the court follow the premises, as laid down in these instructions.
As before remarked, Graham had refused the bond when tendered back to him, but afterwards, as it would seem, changed his mind, and demanded it. Fleming also at one time refused it; but after being subjected to the annoyance of a suit for damages, which had proceeded to trial, we do not see why he had not the right to change his mind and keep it, if he thought proper. But after all, if the plaintiff’s petition in the suit against Fleming was correct, and it was so adjudged, McCubbin was really his agent through this whole transaction, .and the agent’s refusal to deliver the bond was the refusal of his principal. Such refusal [412]*412would give plaintiff no cause of action, as against Mm. It is, perhaps, proper to remark here, that a portion of instruction 5 bears the mark of inconsistency on its face, and that in the portion respecting the deposit, by McCubbin, of the bond in the bank, subject to the order of (Graham. If -that was ever done, how could he ever have withdrawn it, unless by consent of (Graham 1 Several other points are raised by the counsel, in the discussion of this case. But, as our views respecting the instructions are such as will necessitate our sending it back for a new trial, and as the points referred to might not have been material, even if well taken, had proper instructions been given to the jury, we shall not advert to it here.
The judgment of the district court in this case will be reversed, and the cause- sent back, with instructions to grant a new trial therein.
Bailey, J., concurring.
Kingman, C. J., not sitting in this case.