Hodkinson v. McNeal Machinery Co.

COX, J. Action in replevin for possession of certain mining machinery. Trial by court, judgment for defendant and plaintiff has appealed. Plaintiff was the owner of certain mining machinery, located at an abandoned mine some eight miles from Joplin. Plaintiff lived in a distant State and desiring to dispose of this property sent a power of attorney to O. D. Royse, authorizing him to dispose of it. Royse by writing appointed Campbell and Durnell as his agents to sell the property for him. Campbell and Durnell authorized one John Moore to sell the property for them. Moore pretending to act as agent for the owner, sold a part of the property to defendant, collected the purchase price and absconded. On learning of these facts, plaintiff instituted this suit to recover the property. The trial was before the court and at the close of the testimony a great number of declarations of law were given and refused and error is assigned largely upon the court’s action in that respect, but in the view we take of the case it will not be necessary to discuss that. [91] As far as the essential facts of the case are concerned, there is little conflict in the testimony. It is conceded that Royse had the authority to appoint Campbell and Durnell as his agents to sell the property but plaintiff denies that Campbell and Durnell could appoint Moore as agent to sell the property and insists that Moore could not make a sale that would pass title without plaintiff’s assent or subsequent ratification, and on this question the case hangs. Generally speaking the appointment of an agent does not authorize the agent to appoint a sub-agent unless that power is granted in the appointment. [31 Cyc. 1380, 1425; Atlee v. Fink, 75 Mo. 100; Land & Lumber Co. v. Chrisman, 204 Mo. 371, 102 S. W. 973; Warren v. Martin (U. S.), 11 Howard 209 ; Barnard v. Coffin (Mass.), 6 N. E. 364; Harris v. San Diego Flume Co. (Cal.), 25 Pac. 758; McKinnon et al. v. Volmer (Wis.), 43 N. W. 800.] There are certain well-recognized exceptions to the general rule. One of which is that the performance of purely ministerial acts which do not require the exercise of discretion or judgment and do not involve personal confidence and trust may be delegated by an agent without specific authority to do so being given by the principal. [Neiner v. Altemeyer, 68 Mo. App. 243; Nichols v. Larkin, 79 Mo. 264.] Another exception is that the nature of the business or the necessities of the case require the employment of sub-agents. Whitney v. Burnham, 48 Mo. App. 340; St. Louis Cunning Adv. Co. v. Wanamaker and Brown, 115 Mo. App. 270, 90 S. W. 737; Murphy v. Building Co., 155 Mo. App. 649, 135 S. W. 446.] In this case it is conceded that Royce, who was the agent of plaintiff had authority to appoint a sub-agent therefore Campbell and Durnell were authorized to sell this property but could Campbell and Durnell delegate that authority to Moore or any one else? [92] If so where is the delegation of authority to stop? Here the general agent, Royse,- appointed a sub-agent, Campbell and Durnell. The sub-agent appointed a sub-agent under them, to-wit Moore. If Campbell and Durnell, without specific- authority, could do that, then Moore could do it also and so the appointment of sub-agents might go on “ad infinitum.’’ and the owner of the property lose all control of his business, and never be able to know one day in whose hands his business might be placed the next day. No court as far as our research extends has ever promulgated so monstrous a doctrine. While an agent may, if authorized to. do so, appoint a sub-agent who may bind the principal, and may, in certain cases, appoint a sub-agent without a specific grant of authority so to do, yet, in the absence of express authority we think the power o| substitution or delegation stops with the first agent and does not extend to the sub-agent. It follows that Campbell and Durnell had no authority to appoint Moore as a sub-agent and confer upon him any power to bind the plaintiff. [Winkleblack v. Bank, 155 Mo. App. 1, 136 S. W. 712.] We might rest this case here but it is insisted, that under the appointment of Campbell and Durnell the finding of a purchaser for the property of plaintiff was. a purely ministerial act that could be performed by a clerk or servant of Campbell and Durnell and that the sale by Moore to defendant should be upheld upon that ground. The appointment of Campbell and Durnell was in writiug, hence we must look to the writing to ascertain their authority. [Mechanic’s Bank v. Schaumberg, 38 Mo. 228; Glass v. Rowe, 103 Mo. 514, 15 S. W. 334; Land & Lumber Co. v. Chrisman, 204 Mo. 378, 102 S. W. 973.] This writing provided that Campbell and Durnell might sell the property in gross for a sum to net the owner $2200 or they could sell by piecemeal at prices acceptable to Royse and if sold by piecemeal [93] all the proceeds were to he paid to Royse until he had received $2200. About the time or soon after this appointment was made and tbe writing executed a schedule of prices for tbe separate articles of machinery was furnished by Campbell and Durnell to Royse and from this we infer that Royse gave bis consent that tbe separate articles might be sold at tbe prices indicated. Did this make tbe duty of Campbell and Durnell purely ministerial so that they could delegate tbe power to sell and collect? We think not. Even if we were to pass tbe proposition that Campbell and Durnell were themselves sub-agents and take' tbe position that they received their appointment from plaintiff, still, their authority was not a general one but was special and applied to certain specific property which they might sell in gross for $2200 or more, or by piecemeal at certain prices in their discretion. As long as there was any discretion to be exercised by.them they could not delegate to another tbe power to exercise that discretion for their principal in their stead and bind tbe principal. We find tbe rule applicable to these facts nowhere better stated than in McKinnon et al. v. Volmer (Wis.), 43 N. W. 800, where it is said: “Tbe rule is that an agent in whom is reposed some trust or confidence in tbe performance of bis agency, or who is required to exercise therein discretion or judgment has no authority to intrust tbe performance of those duties to another and thus bind tbe principal for tbe acts of tbe latter without tbe consent of bis principal.” Campbell and Durnell’s appointment required tbe exercise of discretion on their part as to whether tbe sale should be made in gross or by piecemeal. Tbe power to sell in tbe absence of restrictions implies tbe power to receive payment and transmit tbe price received to tbe seller. [Rice et al. v. Groffman, 56 Mo. 434.] This puts into tbe case tbe element of personal trust and confidence that tbe price received, if tbe property be sold, will [94] be honestly accounted for as well. In this case, therefore, both the elements of the exercise of discretion and that of personal trust and confidence were present and under all the authorities the agents, Campbell and Durnell, could not delegate their duty to another. The defendant having purchased from Moore as agent of the owner was, by the fact that it was dealing with Moore as agent, put upon its guard as to his authority and the burden of proof to show such authority was upon it. [Stone v. Palmer, 28 Mo. 539; Knoche v. Whitman, 86 Mo. App. 568; Turner v. Lord, 92 Mo. 113, 4 S. W. 420; Johnson v. Hurley, 115 Mo. 513, 22 S. W. 492; Kilpatrick v. Wiley, 197 Mo. 123, 95 S. W. 213.] It clearly appearing that defendant failed to prove any authority in Moore to sell this property a finding in plaintiff’s favor should have been directed and there was no occasion for giving any of the declarations of law that were given in this case. The value of the machinery sold to defendant was agreed as $660. The only evidence of damages for its detention was an estimate by Royse that perhaps $150 had been expended in attorney’s fees and expenses of this litigation. These are not proper elements of damage in a replevin suit. The judgment is reversed and the cause remanded with directions to enter judgment for plaintiff and if plaintiff shall elect to take the property, and not its value, to then proceed to hear testimony and assess the damages for its detention. If plaintiff elects to take the value of the property, judgment should be rendered for $660 and interest at six per cent since the date of the trial. All concur.