Elmier v. Brant

There seems to be no dispute in this action over the price per thousand feet for which plaintiff, as agent for defendants? sold their logs, but the real controversy on the trial was as to the number of feet for which the plaintiff collected pay. The defendants relied, on this point, upon a written statement made to them by plaintiff in the month of June, 1889, and on several verbal statements or admissions made by him about the same time, to the effect that he had sold and had been paid for 410,000 feet, the number of feet shown by a scale made when the logs were on the ice of the driving stream. The plaintiff did not deny that he had made the verbal statements or admissions, and expressly admitted that he had furnished the written statement referred to. But he claimed that all of these statements and admissions were made under a misapprehension of the facts; that they were wholly based upon an erroneous estimate of the number of feet of logs which would come into the boom and be delivered to the purchasers, — an estimate founded upon the scale before mentioned, and which plaintiff asserted was incorrect. The plaintiff testified, and it was undisputed so far as appears from the record, that when the logs came into the boom, some time after these statements and admissions, there were but 239,-750 feet, and that the purchasers paid him for this quantity, and no more. It would seem to have been an easy matter for the defendants to have shown that the plaintiff was untruthful, and did receive payment for a greater quantity, if such was the fact. And upon the *260plainest principles of justice it would seem that the plaintiff, acting as defendants’ agent, without compensation, in the sale, ought not to be held for money paid on account thereof, unless he has received it. If the scale upon the ice was incorrect, the defendants cannot be permitted to recover of the plaintiff on account of the error; and if, upon the other hand, it was correct, we see nothing to prevent the defendants from securing the balance of their logs or compensation therefor when received by those who purchased from their agent. There is nothing to the respondents’ contention that, if appellant had any claim against them which could be enforced, it was not upon the original account, but upon an independent claim for money paid in February, 1890, to the purchasers of the logs.

Order reversed.

(Opinion published 51 N. W. Rep. 284.)