Wilson v. Groelle

Pinney, J. 1. We think, in view of all the evidence, a more particular statement of which would serve no useful purpose, that the court properly submitted it to the jury whether in the sale of the flour, etc., Rolph was an agent of the plaintiff, or whether the credit was given to Rolph and the flour was sold to him; that in the latter case the plaintiff could not recover at all, but that in the former case he had a right to notify the defendant, and maintain his action to recover the balance due from the defendant for the flour at the time he received notice of the plaintiff’s rights. If an agent sells goods of his principal, but in his own name, the principal may interpose before payment, and forbid it to be made to his agent; and a payment after such notice will not bind the principal. The principal’s right to bring an action for unpaid balance of purchase price takes precedence of the right of the agent; and where he gives notice of his rights to the other party, and demands performance to'himself, he may cut off the agent’s right to sue, unless the agent has a lien upon the subject matter, equal to or greater than the claim of the principal. Mechera Ag. § 172; Huntington v. Knox, 7 Cush. 371. And if the principal would avail himself of such contract he must assume its responsibilities and take it as it exists, subject to all the rights which the other party possesses as against the agent. Ex parte Dixon, 19 Eng. (Moak), 724; Semenza v. Brinsley, 18 C. B. (N. S.), 467. 2. The uncontradicted evidence shows that the defendant [535] received notice of whatever rights the plaintiff had as principal in the sale on the 22d day of May. The testimony of the plaintiff, above quoted, puts this beyond question. If, then, the plaintiff’s claim that Rolph was dealing with the flour as his agent, and was not the owner of it, was well founded, he had an undoubted right to recover the balance then due, and the record of the proceedings in the garnishee suit of Kennedy et al. against Rolph as debtor and the defendant, Groelle, as garnishee, to which proceedings the plaintiff was in no sense a party, and of which he had no notice before judgment therein, ought not to have been admitted in evidence. . 3. The garnishee proceedings were instituted seven days after the defendant received notice of the plaintiff’s rights. In this proceeding there does not appear to have been any service made on Rolph, the principal defendant; and the garnishee,, the present defendant, not only wholly failed to interpose as a defense the claim set up by the plaintiff, but he took no steps to notify him of the pendency of the proceeding, or to afford him an opportunity to defend his title. He plainly did not act in good faith, as the law required he should, in order that the judgment rendered should afford him any protection as against the claim asserted against him for the same indebtedness in this action. Adams v. Filer, 7 Wis. 306; Winner v. Hoyt, 68 Wis. 286. 4. As the uncontradicted evidence showed that the defendant had notice of the plaintiff’s rights before the garnishee suit was commenced, it was error to leave the question of notice to the jury, and to instruct them that, if the defendant did not actually have notice until after the garnishment proceeding was ended, then the plaintiff would not be entitled to recover the balance recovered on the garnishment, but might recover anything left, not paid on that garnishment. This left the jury to give full effect to the garnishment proceedings, of which the defendant had not given him any notice, and in which he did not inter [536] pose the plaintiff’s claim, although he had notice of the plaintiff’s rights a week before these proceedings were instituted. The plaintiff was entitled to an absolute instruction to the jury that if, in the sale of the flour, etc., Rolph was the plaintiff’s agent, he was entitled to recover of the defendant what remained due on the sale of the flour on the 22d day of May, when he received notice of the plaintiff’s rights- 5. The point that the plaintiff could not recover because the defendant, by the terms of the sale, had a right to make payment in hay, and there was no proof of a previous demand for the hay, is not well taken. The defendant might, as he did, when garnished, waive the right to make payment in hay, and elect to treat it as a money demand, by swearing to it as such in his answer to the garnishee suit. Having once waived the right to pay in hay, he cannot be now allowed, in the face of his solemn admission that it was due in money, to insist on the contrary in this subsequent action. For the reasons above stated, the judgment of the circuit court is erroneous. By the Court. — 'The judgment of the circuit court is reversed, and the cause is remanded for a new trial.