H. T. Keown & Co. v. Vogel

I. Hall, J. The defendants made the point here for the first time that the plaintiff is not the real party in interest, he having been the agent merely in the sale of the machines. The defendants tried the case on the theory that the plaintiff was the real party in interest and ought to be bound by that theory in this court. But the point is without merit. The plaintiff did not make the sale as the agent of J. E. Hayner & Company.' The sale was made by Handy as agent of plaintiff. The plaintiff in the sale acted and was known as the principal and not as the agent of any one. The plaintiff was, therefore, entitled to sue for the purchase price of the'machine. It is said by Mr. Story that, “if an agent sell's the goods of his principal in his own name, and as if he were owner, he is entitled to sue the buyer for the price in Ms own name, although the principal may also sue.” Story on Agency, sect. 396. II. The objections made by the defendants that the declarations of law given for the plaintiff do not state correct propositions of law, abstractly considered, are not well taken. Story on Agency, sect. 102; Chambers v. Short, 79 Mo. 206; Butler v. Dorman, 68 Mo. 298. In the latter' case the cases of Summer v. Saunders (51 Mo. 89), and Rice et al. v. Groffman (56 Mo. 434), cited by defendants are explained, and the rule is laid down that ‘1 where the principal has clothed the agent with the indicia.of authority to receive payment, as by intrusting to him the possession of the goods to be sold, the purchaser is warranted in paying the price to the agent, but when the agent has not the possession of the [40] goods, indicia of authority, aud is only authorized to sell, if the purchaser pays the price to the agent he does so at his own peril, and it devolves upon him, in a suit for the purchase money by the principal, to prove that the agent was also authorized to receive payment.” The declarations of law correctly declared the law in accordance with the rule as thus laid down. III. The defendants further contend that the conversation between Handy and Peleg Yogel, in the presence of the plaintiff, in connection with the plaintiff’s silence at the time, constituted an estoppel against the plaintiff, estopping him from denying Handy’s authority to thereafter accept payment for the machine, and that the declarations of law erroneously ignored the defence of estoppel. This contention is not well made. One reason for so holding will suffice. The facts stated did not constitute an estoppel unless the defendants were induced thereby, in whole or in part, to make the payment to Handy. Peleg Yogel, himself, testified that he paid Handy “from fact that Tie made sale and that I thought him the proper party to pay.” There was not a scintilla of testimony tending to show that the defendants were in any way induced by said facts, to believe that Handy was the proper party to whom to make payment, or to make payment to him. The case, was properly tried, and the judgment is affirmed. All concur.