Posey v. Stutsman County Bank

Statement. Bronson, J. The complaint alleges that on March 22, .1920, plaintiff entered into a contract with said defendants whereby said defendants agreed to clerk and take charge of plaintiff’s sale; that defendants agreed' to take charge of all settlements made by purchasers at said sale and to pay to plaintiff the purchase price of such lots, goods, and chattels as-might be sold at said sale in cash; that defendants agreed not to permit any property to be removed from plaintiff’s farm until full settlement had been made by the purchasers thereof; that on March 26, 1920, plaintiff sold at public ■ auction, pursuant to agreement with the defendants, [1101] certain goods, which were bought by Robert Walks as the highest bidder, for $654.65; that Robert Walks received possession of such property and removed the same from plaintiff’s premises with the permission of the defendants; that defendants had not settled for or paid plaintiff for such property; and that there remains due thereon $654.65. The' answer of the defendant Posey admits that the plaintiff employed him personally to act as clerk at plaintiff’s auction sale and that he agreed to pay him for his services $10. The bank interposed a general denial and a counterclaim uj5on a note for $100. The plaintiff, in reply, generally denied the counterclaim. The jury returned a verdict of $583.65, with interest, against both defendants, less the amount of the counterclaim with respect to the bank. The defendants have appealed from a judgment entered thereupon, and from an order denying a motion for judgment non ob-^ stante, or, in the alternative, for a new trial. The facts necessary to be stated are as follows: The plaintiff resided upon a farm near Courtenay, where, on March 26, 1920, he held a public sale. The defendant Plarry Posey is his nephew, and was the cashier of the defendant bank. Concerning the arrangement made with the defendants, the plaintiff testified that he saw Harry Posey in the bank; that he told him he would employ him to clerk the sale, if he would do it reasonably; that Harry Posey agreed to clerk the sale for $10, and that the bank would take the paper at 95 cents on the dollar, all of it; that there would be no charge for the cash to be paid at the sale. This was four or six days prior to the sale. The plaintiff proceeded to get out auction bills and to post the same. These bills stated the terms of sale to be: “All sums of $15 and under, cash; over that amount, time given until October 1, 1920, on approved security. No goods to be removed until settled for. All goods and stock at owner’s risk as soon as sold.” The plaintiff employed an auctioneer, and for his services paid him 1 per cent, of the total amount resulting from the sale. At this sale one Robert Walks bought various items of property, amounting to $654.65. Harry Posey clerked the sale. Plaintiff paid him $10 for his services. There is evidence in the record to the effect that, prior to the sale, Harry Posey advised Robert Walks that whatever he purchased at such sale must be settled with cash; that Walks advised him about a land deal in which he was then concerned, whereby he would secure some money in a few days, or possibly two weeks; that Harry Posey told him this was all right. However, Harry Posey maintains in his testimony that he [1102] continuously advised Mr. Walks that he would have to pay cash, and also so notified the plaintiff. At the time of the sale Walks intended to move upon plaintiff’s farm. Later, within a short time, he did move upon such farm. After the sale, no settlement was made by Walks with Harry Posey or the plaintiff. No settlement has ever been made, either in cash or upon approved security. Harry Posey’s testimony is to the effect that he demanded settlement in cash, and advised plaintiff not to permit removal of property until settlement was made. Plaintiff’s testimony is to the effect that he had nothing to do with the settlement. He received no advice from defendant Posey that settlement must be made in cash; that he expected all property sold at such sale to be paid either through cash received at the sale or by the defendant bank, whose business it was to see that approved security was given or to refuse permission to a person to bid if the condition were otherwise. After the sale Walks made an exchange of twt> horses, which he bought at the sale, for some other property of the plaintiff, pursuant to an agreement between them. The testimony is that this was satisfactory to the defendants. All of the property, excepting two horses or two colts, so bought by Walks, remained upon the premises, although it appears that Walks assumed to and did take charge of such property. It appears that some negotiations were thereafter had for purposes of making settlement with Walks but no. settlement occurred. It appears, further, in the testimony, that the plaintiff, during the sale, was engaged in looking after the providing of a lunch, and with details concerning the presentation of the property for sale. It appears, also in the evidence, that at this sale the plaintiff had a by-bidder to bid on some horses, which he desired to keep and retain, up to a certain figure; that upon two sales the purchasers credited their respective accounts owing by the plaintiff; that one purchaser paid the plaintiff direct. This lawsuit has resulted through the failure of Walks to make settlement for the goods purchased at this auction sale. Decision. The complaint, if it alleges any cause of action, sets up a contract of employment involving principles of agency and violation of such contract of employment through failure to perform contract duties assumed. As such, it must'be construed to allege an action to recover damages for violation of instructions and breach of duty. See 2 C. J. 886, 909. In this regard the gist of plaintiff’s cause is the alleged agreement by the [1103] defendants to take charge of all settlements, and not to permit any property to be removed from plaintiff’s farm until full settlement therefor had been made.. Although it is alleged in the complaint, the evidence fails to disclose any specific agreement whereby defendants agreed not to permit any property to be removed from plaintiff’s farm until full settlement therefor had been made. In accordance with plaintiff’s testimony, he employed the defendant Posey to clerk his auction sale, with an understanding that the bank, of which Harry Posey was cashier, would take all of the paper at 95 cents on the dollar. Otherwise, he testified that Harry Posey was to pass upon the paper that should be accepted by the bank. It is true that he otherwise testified that it was the business of Harry Posey to see that no one bid at the sale, unless he would pay cash, or unless his paper would be acceptable to the defendants; that, if one were permitted to bid, the acceptance of such bid would constitute a sale. As the evidence discloses, however, such statement of the plaintiff was his mere conclusion upon the agreement that he had made with Harry Posey and concerning the duties imposed as clerk of the sale. Upon the record the defendant Harry Posey, whether representing himself alone ■or as the agent of the bank, as an employee of the plaintiff, as his agent, in clerking the sale. As such employee he was not an insurer. Pie was merely bound to exercise reasonable care, skill, and judgment. 21 R. C. L. 825; 18 R. C. L. 502, 503. The sale was conducted by the plaintiff, not the defendants. The auctioneer was employed by the plaintiff. The terms of the sale were specified by the plaintiff. The evidence does not show that the defendants, or either of them, pursuant to the agreement made, or otherwise, guaranteed the payment of cash or the tender of approved security by any of those who might bid at the sale. The defendant Plarry Posey acted as a mere clerk of the sale, with the additional duty and right to pass upon security that might be tendered by bidders who desired to buy. It is apparent that the plaintiff in certain cases dealt individually with bidders. He had a by-bidder present for the purpose of bidding at the sale. In one case he settled direct with the purchaser. Some debts owing by the plaintiff were offset against purchases made by the bidders. The evidence fails to disclose that Walks, after the sale, tendered any approved security. After the sale he proceeded to trade some other property for two horses bought by him at the sale. Consent to such proceedings, if given by the clerk of the sale, was consent as plaintiff’s [1104] agent, not as an independent contractor. There is a failure of proof to show any agreement not to permit delivery of the property to bidders, and to show any breach of duty, whether impliedly assumed or expressly contracted, by the defendant Harry Posey in making settlement concerning the Walks purchases. The judgmént is reversed, plaintiff’s action dismissed, and judgment ordered to be entered in favor of the defendant bank for its counterclaim, with costs. Christianson and Robinson, JJ., concur. Grace, J., concurs in the result. Bird.zell, C. J., dissents.