Alexander v. Oneida County

Cassoday, J. 1. Since parties are always at liberty to settle their own controversies and by stipulation discontinue their own actions, there wmuld seem to be no valid reason why they may not by stipulation modify an injunc-tional order, as in the case at bar. 2. It is conceded that the payee of the order, Daniel [60] Graham, obtained a good title to the same. It is contended, however, that his attempt to pass the title to the plaintiff, without any written evidence of such contract of sale subscribed by him, was void under sec. 2308, R. S. But that section does not require a contract for the sale of things in action, for the price of $50 or more, to be in writing when the buyer accepts and receives the evidences, or some of them, of such things in action, nor when the buyer “at the time” pays the whole or some part of the purchase money. Here it appears from the undisputed evidence that the plaintiff left the money in the office of the witness Hoyt, and with it he purchased the order so indorsed by Graham for the plaintiff, and had held it for him, as agent, ever since, and that the plaintiff was the owner of the order at the time of the commencement of the action, and continued to be such owner. What was thus done by Hoyt as agent was, in legal effect, done by the plaintiff; and hence the acceptance and receipt of the order by Hoyt was the acceptance and receipt of the same by the plaintiff. Counsel seems to think that the fact of such agency, in such a case, could not be established by parol evidence. But the cases cited by him fail to sustain his contention. In Smith v. Bouck, 33 Wis. 31, an attempt was made to establish agency by implication in a transaction where each, party was manifestly acting for himself. It is there conceded that such agency, to be valid and sufficient in such case, must have been created or the agent designated by some separate and distinct act or appointment of the buyer. It is not there held that such separate act or appointment must be in writing. Here, Hoyt became the agent for the purpose of making the purchase when the money was left with him for that purpose; and .hence the act of his appointment as agent constituted no part of the contract of purchase. We have no doubt of the competency of such [61] parol evidence. The essential thing, to pass the title on such purchase by delivery, is for the seller to relinquish and surrender all possession and control of the thing sold, and for the buyer to obtain complete possession and control of the same; and this, as observed, may be done by his agent for him, as well as by himself. Somers v. McLaughlin, 57 Wis. 358. Besides, the purchase of the order by Hoyt, with money left with him for that purpose by the plaintiff, seems to imply the payment of the purchase price at the time. We must hold that the evidence shows title to the order in the plaintiff. 3. We are convinced that the court erred in directing a verdict for $40.36 interest in addition to the amount named in the order. Especially is this so since it was not made to appear that, at the time the order was presented for payment and payment refused, there were sufficient funds it. the treasury for that purpose to pay the same. The statute is explicit, and leaves no room for construction nor possibility of evasion. “Ho county board shall issue a greater amount of county orders than the amount of the county taxes levied in such county for such year; and no interest shall ever l>e paid ~by any county on any county orders.” Sec. 686, R. S. Both Graham and the plaintiff accepted the order subject to this condition. We are inclined to think the evidence of demand and refusal was sufficient to justify this suit to be commenced on the order thirty days thereafter, within the meaning of sec. 929a, S. & B. Ann. Stats.; ch. 240, Laws of 1881. The offer of tender was clearly insufficient. By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.