Lonabaugh v. Morrow

Corn, Justicr. The defendant in error brought .suit against plaintiff in error and the Bank of Commerce to recover for labor and [29] money expended in gathering certain cattle. The bank had a mortgage on cattle belonging to Wallace Brothers and employed plaintiff in error, an attorney at law, to foreclose it. The latter employed defendant in error, Morrow, who was at that time Sheriff^ of Sheridan County, to gather the cattle described in the mortgage, •■and handed to him a paper executed by the bank appointing him their agent for the purpose and describing the cattle by their brands. Lonabaugh also handed to Morrow two executions in favor of other clients of his against the mortgagors, and, as Morrow testifies, instructed him also to gather certain other cattle branded 7X. Lonabaugh-denies giving the last mentioned instructions, and says that his purpose in handing the executions to Morrow was to have them levied on the mortgaged cattle subject to the mortgage, their value being very much greater than the claim of the bank. The bank, through Lonabaugh, gave Morrow $25 to apply on his expenses and Lonabaugh gave him $20 additional for the s'ame purpose. Morrow brought in ninety-four head, but only six of them were covered by the mortgage, the remainder being 7X cattle. Plaintiff in error examined the records and found that the latter were not subject to his . executions and they were returned to their range and turned out. The court found in favor of the bank, but gave judgment against Lonabaugh in favor of Morrow for the amount of his account, less the proper credits. Plaintiff in error contends that, Morrow’s instructions from the bank being in writing, it was error to admit evidence to show additional instructions given by himself, and cites authorities to the principle that parol evidence is not ' admissible to vary the terms of a written instrument. The authorities are not applicable to the facts of this case. Even if the, bank itself, after giving to its agent written authority and instructions to perform certain acts, had found it desirable or convenient to add oral authority and instructions to perform other acts not covered by the writing, there is no reason why it might not do so and no reason why such [30] authority and instructions might not be established by parol evidence. Such evidence would.not tend to vary the terms of the written authority, but only to prove authority for another object. .In Story on Agency it is said that: “Although in general the maxim is true that where an express power is conferred by writing, it cannot be enlarged by parol evidence, yet the maxim is applicable only to cases where the whole authority grows solely out of the writing, and the parol evidence applies to the same subject matter, at the same point of time, and therefore in effect, seeks to contradict or vary or control the effect of the writing. When parol evidence seeks to establish a 'subsequent enlargement of the original authority, or to give an authority for another object; or where the express power is en-grafted on an existing agency, affecting it only sub modo to a limited extent, the maxim loses its force and application.” (Story on Agency, Sec. 79; Mechem, Agency, Sec. 301; Hartford Fire Ins. Co. v. Wilcox, 57 Ill., 180.) But in this case it was not sought by the parol evidence to establish an enlargement of the original authority, or to establish that the bank had given authority for another object, but the purpose of the evidence was to show that the plaintiff in error ha'd also employed Morrow as his agent to perform work for him entirely separate and distinct from that undertaken by Morrow for the bank. .It is too plain for argument that this did not involve any change of the terms of the written instrument or affect the written instructions in any way whatever. It was a new employment by a different principal. It is also- apparent that, being a separate employment, it makes no difference- whether the oral instructions from Lonabaugh were given to Morrow at the same time he handed him'the writing from the bank or before or afterwards. We think the court committed no error in admitting the parol evidence.- It is also contended that the findings of the court are not sustained by the evidence. The controversy seems to have arisen out of a misunderstanding between Morrow and [31] Lonabaugh. The former testifies positively that the latter instructed him to gather the 7X cattle- and the latter testifies as positively that he did not. But Morrow also testifies that, when Lonabaugh requested him to act'as agent for the bank in gathering the- mortgaged cattle, he refused to go, saying that he did not want to do any business for the cashier of that bank. Lonabaugh replied that he would compel him to go by issuing executions upon some judgments he had against the mortgagors. That he then consented to go, preferring to act as agent instead of officially, as sheriff. That Lonabaugh did hand him the executions and also gave him $20 in addition 'to the $25 given him by the bank, to pay expenses. These facts are not denied by plaintiff in error, and they strongly indicate that, at that time, he understood that Morrbw was -starting out not only as agent for the bank, but as his own agent also. He states that his purpose in handing the executions to Morrow was to have them levied on the equity in the mortgaged cattle over and above the amount due the bank. But, as it is reasonable to presume that the bank was to pay the expense of gathering the mortgaged cattle, and there is no evidence to the contrary, this does not explain the advancement of money by plaintiff in error out of his own pocket to assist in defraying Morrow’s expenses. Indeed, he does not seem to be able to deny that he may have .^iven Morrow to understand that he was to gather other cattle. When asked ■ on cross-examination, “Did 'he understand by anything that you said to him that he should gather anything except what was in the chattel mortgage,” he replied: “I don’t know as to that. We talked the matter over in my office several times and arranged the -preliminary matters and arranged about his going up there. I - don’t know what was said to him at that time as to what cattle he was to get.” But he adheres to the statement that he never thought of giving Morrow authority to ’gather any cattle other than those described in the mortgage. Their recollection evidently differed as to the conversations. The [32] District Court passed upon this conflict in the evidence and we will not disturb its decison. The evidence for the plaintiff was not presented in'an orderly way, but we think it sustains the findings' of the court. The judgment will be affirmed. Affirmed. Potter, C. J., and Knight, J., concur.