Curkeet v. Steinhoff

Siebecker, J. It is averred that the submission of the first question in the special verdict was prejudicial error, because the inquiry propounded did not cover an issue raised by the pleadings, and its submission was confusing and misleading to the jury. It appears that the main controversy turned upon the question of whether there were seven or eight heifers in the group brought.into the sale ring and sold to defendants. True, this issue is fully covered by the second question of the special verdict. It appears, however, that this controversy arose over the disputed claim of the parties to the heifer described and specified in the first question; it being averred and claimed by defendants that this particular animal was of the group, eight in number, which they purchased, while plaintiff asserted that it was not one of this group, but that it had been sold to Huntington before defendants purchased. This situation presented the inquiry as to whether this particular animal had actually been sold to Huntington and kept separate from the group defendants purchased, and made, it one of the vitally litigated facts in the case, and one which the jury must have specifically ascertained to enable them to answer the second question of this verdict. Under such circumstances it was proper for the court to take the jury’s specific .finding as to this fact, though such finding was involved in the issue covered by the second question. We do not discover that this procedure misled or confused the jury. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. Appellants next urge on our attention the claim that the [150] court improperly allowed plaintiff Ms costs in the action. Tbis question, however, will depend upon whether the court correctly held that defendants had not made a payment of $417.50 on plaintiff’s claim for the property purchased from him at the auction sale. The jury found that such payment had been made, but the court disregarded such finding, evidently upon the ground that the undisputed facts showed that such payment had not been made. It appears that when defendants called for the delivery of the property they had purchased from plaintiff, the parties disagreed as stated, and plaintiff refused to accept the sum of $417.50 which was offered to him as payment in full for the property defendants had actually purchased. Defendants thereafter, without paying the sum due plaintiff, received all of the property they claimed except the animal in dispute. Some days after such delivery the plaintiff, through the First National Bank of Platteville, drew on defendants for the sum of $435, the amount he claimed for the property delivered to defendants, with instructions to the banking officers to receive no amount in payment of such draft other than the sum specified. Defendants appeared at the bank and left the sum of $417.50. This was received and retained by the bank and offered to plaintiff in payment of the draft, but he refused to accept it as payment of his claim and therefore declined to receive it. The contention of defendants is that this transaction through the bank constitutes payment of plaintiff’s claim to the extent of the amount so left with the bank and limits the amount of plaintiff’s recovery under the verdict to $17.50. We do not find such to be the 'consequences of this transaction for the collection of plaintiff’s claim. The bank as collecting agent for plaintiff was given no authority to receive part payment, but was specifically instructed to receive nothing except the full amount of the draft. Plaintiff’s attitude in the matter had been brought (to defendants’ notice by his repeated refusals to accept an offer of any, sum less than the [151] full amount claimed. The contention that the court erred in not following the finding of the jury, to the effect that payment to the hank under the circumstances was a discharge of plaintifPs claim to the amount received by the bank and left only a balance of $17.50 due from them when the action was commenced, is not sustained. It is apparent that the bank had no authority to receive part payment of the debt. As stated, the bank had been expressly instructed to that effect. It could not disregard such instructions and accept part payment of the debt. Rut, were the case devoid of such specific instructions to the bank, still we find no basis on which defendants could claim this to be a partial payment of the claim. It is undisputed that the bank’s authority arose out of the fact that the draft was placed in its custody as plaintiff’s collecting agent. Erom the authority so given arises no implication of authority other than to obtain payment in full, and any implied authority to accept part payment is excluded. Selover, Bank Collections, § 44; 5 Cyc. 505; Lowenstein & Bros. v. Bresler, 109 Ala. 326, 19 South. 860; Capital State Bank v. Lane, 52 Miss. 677; Story, Agency (9th ed.) § 98. The court properly determined that the undisputed evidence showed that no part of the debt had been paid by defendants, and the jury’s finding on this subject must be disregarded. Erom this it results that plaintiff was entitled to recover in the action the full amount of his claim with interest thereon from the time it was due and his costs of the action. An examination of the exceptions urged to the reception of evidence over objection and to the court’s conduct in asking witnesses questions shows that the evidence objected to was competent and material, and that the court properly propounded the questions to the witnesses in the case. We discover no prejudicial error in the record. By the Court. — Judgment affirmed.