
    The Hutchinson Wholesale Grocery Company v. Rufus L. McDonald & Co. et al.
    
    No. 14,135.
    (80 Pac. 950.)
    Error from Kingman district court; Preston B. Gillett, judge.
    Opinion filed May 6, 1905.
    Affirmed.
    
      Prigg & Williams, for plaintiff in error.
    
      George A. Vandeveer, Frank L. Martin, C. W. Fair-child, and George L. Hay, for defendants in error; J. F. Woodson, of counsel.
   Per Curiam:

McDonald & Co. held a chattel mortgage upon a stock of goods owned by Grice. The Hutchinson Wholesale Grocery Company obtained a second chattel mortgage on the same stock, which by its terms recognized the priority of McDonald & Co.’s mortgage. Subsequently McDonald & Co. took possession of the goods. While their representative was absent from the store in which the goods were located Grice and one Dunnett, an attorney who had represented the grocery company in taking its mortgage, took possession of the store and stock of goods and excluded McDonald & Co.’s representative therefrom, and they then brought this action in replevin to recover possession. The entire contention turns about the question whether Dunnett was acting for the grocery company at the time, or for Grice, and whether it was the grocery company or Grice, or both, that took the possession away from McDonald & Co.

There is no question but that Dunnett assumed to act for the grocery company, but neither his acts nor words could be shown to prove his agency. Practically all of the questions in the case are solved if there was sufficient evidence of his agency produced to prove that agency if undisputed, or to go to the jury if disputed.

In this case there was little or no dispute as to the evidence that went to prove Dunnett’s representative authority, and we think this evidence abundant to establish it. It was probably out of an abundance of caution that the court submitted any question to the jury rather than to direct a verdict for the plaintiff.

The judgment is affirmed.  