#### Progress Blue Ribbon Farms, Appellant, vs. Chicago Horse Sales Company, imp., Respondent.

*March 15*

April *8, 1913.*

*Principal and agent: Factors: Sale of property at auction: Payment to principal before buyer pays: Right of factor to recover from buyer.*

1. A person employed to sell another’s property at auction, or a factor to whom property has been consigned for sale, has an interest in the proceeds of the sale entitling him to sue and recover the same in his own name; and in case he pays his principal in full and delivers the property before receiving payment from the buyer, and the principal accepts and retains the money, the agent becomes the sole party in interest and is entitled to recover of the buyer for his own use.

2. In making such payment to the principal the agent does not act as a mere volunteer.

*250Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

Action to charge R. C. Wirth as garnishee of W. P. Dickinson *et al.*The money, $1,665, involved, was paid into court by the garnishee and the contest was between plaintiff and the intervening defendant, *Chicago Horse Sales Company,*which claimed to be entitled thereto. It contended that when the garnishee proceedings were commenced Wirth was not liable to the principal defendants and, therefore, an action could not have been maintained by them against him.

The facts were these: The principal defendants were indebted to the plaintiff. The former consigned some horses to the intervening defendant for sale at auction. Mr. Wirth attended the sale and made purchases, in due course, so as to incur liability for $1,665. After the sale was concluded he gave the sales company a draft on one Dunbar, payable at a Milwaukee bank, for the amount of his liability. Before the draft was presented to Dunbar he was garnisheed. Therefore it was protested and returned to the sales company. The horses were shipped to Dunbar and placed in his stable before he was garnisheed. After the sales company settled with the Dickinsons for the horses Wirth was garnisheed on account of the $1,665, it being claimed that, since his draft was returned unpaid, he still owed the Dickinsons for the horses. The first garnishee proceedings were dismissed. After Wirth was garnisheed, the sales company having previously paid the Dickinsons, as indicated, it intervened in the garnishee suit, claiming that Wirth was indebted to it, not the principal defendants. Thereafter, in due course, Wirth paid the money into court.

Findings were made in harmony with the foregoing and a decision rendered thereon that the intervening defendant was entitled to the money.

For the appellant the cause was submitted on the brief of *Tullar & Lockney*and *Arthur H. Bartelt.*

*William L.*Tibbs, for the respondent.

*251Marshall, J.

Who owned tbe claim against Wirtb when tbe gamisbee summons was served on bim ? Tbe answer to that will answer as to whether tbe intervening defendant was entitled to tbe money paid into court to discharge tbe indebtedness.

It is useless to claim that tbe sales company paid tbe Dick-insons as a mere volunteer. When tbe company received Wirth’s draft, it accepted such draft, provisionally, as payment and was warranted, as mutual agent, in doing so and advancing tbe amount of tbe draft to tbe Dickinsons, taking its chances on tbe draft being honored by tbe drawee. Since tbe sales company bad no right to take anything but money as a condition of delivering tbe horses to Wirtb, in taking tbe draft it became liable to tbe Dickinsons and tbe owner of tbe paper. Upon that being dishonored and returned, tbe claim against Wirtb was, necessarily, revived in its favor, rather than in favor of tbe Dickinsons. It bad no claim against tbe latter for tbe return of tbe money. All that is according to the natural order of things and elementary principles.

Tbe general rule is that a person employed to sell another’s property at auction, or a factor to whom property has been consigned for sale, has an interest, upon a sale being made, in tbe proceeds, entitling bim to sue and recover tbe same in bis own name and, in case of his paying tbe net proceeds and delivering tbe property before receiving payment from tbe buyer, as in this case, and tbe principal accepts and retains tbe money, tbe agent is entitled to recover of such buyer for bis own use. Tbe respondent was a factor. Tbe circumstance that it was permitted to sell tbe property at auction did not make any difference in its status. As indicated, a factor, tbe -same as an auctioneer, is entitled to sue for tbe sale price in bis own name and control tbe litigation if tbe principal does not prohibit it. *Beardsley v. Schmidt,*120 Wis. 405, 98 N. W. 235. In ease of tbe principal receiving full payment from tbe agent in advance of tbe latter obtaining payment from tbe purchaser, tbe agent is tbe sole party in *252interest; so, obviously, the principal has no concern in the matter between such agent and purchaser.

Under the facts of this case, there is no question but that the sales company was the owner of the claim against Wirth when the latter was garnisheed, the money as soon as paid into court was impounded for its use, and the judgment rendered, accordingly, is clearly right.

*By the Court.*— Judgment affirmed.