
    JOHNSON, Respondent, v. GEO. C. BAGLEY ELEVATOR COMPANY, Appellant.
    (156 N. W. 76.)
    (File No. 3850.
    Opinion filed February 1, 1916.)
    1. Principal and Agent — Delivery of Grain for Storage, or Gash Check — Authority of “Agent” — Servant.
    Where a grain buyer and warehouseman, after being notified by the owner of land whose tenant was in possession of the land, that it should store) the owner’s grain delivered to it by the tenant, in whose possession the grain then was, and issue storage tickets therefor and deliver the same to the tenant, who was instructed by the owner to 'haul the grain and take the tickets, and who informed the warehouseman .that he would haul the grain accordingly, and that his hired man would deliver it, and the hired man, without any authority therefor, demanded of .the warehouseman cash tickets for the ■grain delivered, which were issued to him, and the hired man forged the name of .the owner of the grain on the back of the ticket and drew the money on the same, and the owner demanded of the warehouseman storage tickets for the grain delivered, which it refused to give him, held in a suit by the owner for the grain or its value, that the hired man was not the sub-agent of the owner of the grain, under Civ. Code, Sec. 1476, defining the relations of servant to master, and Section 1656, defining an “agent” as one who represents another in dealings with third persons, 'but was merely the tenant’s servant, without authority, actual or ostensible, .to contract with the warehouseman on behalf of the owner, that the limit of his power was merely to’ deliver the grain, and that the warehouseman had been so advised, and it was liable to the owner for .the value of the grain.
    2. Estoppel — Equitable Estoppel — Principal and Agent — Negligence in Failing to Act Upon Previous Information of Agency.
    In said case, held, that the doctrine that, where one of two innocent parties must suffer, he wlm made it possible for his agent to defraud should not recover, does not apply, the negligence of the warehouseman, after notice, in dealing with the tenant’s hired man, being the sole cause of the wrong done in converting the cash ticket, though the warehouseman acted in good faith.
    Appeal from Circuit Court, Grant County. Hon. Joseph H. Bottum, Judge.
    Action by C. W. Johnson, against the Geo. C. Bagley Elevator Comipany, -to' recover certain grain or its value. Erom a judgment 'for plaintiff, and from an order denying a new trial, defendant appeals.
    Affifmed.
    
      Carpenter & Morrison, and Geo. S. Rix, for Appellants.
    
      Thad L,: Puller, and' Howard G. Puller, for Respondent.
    (i) To point one of the opinion, Appellant cited. Fanset v. Garden City State Bank, 123 N. W. 686; McCord v. Western Union Telegraph Co., (Minn.) 39 N.‘W. 3x5; Sec. 1684, Civil Code; Penáis v. C. M. & St. R. Ry. Co., 127 N. W. 926; Mott Iron Works v. Bank, 139 Pac.- 36.
    Respondent-cited: -Civ. Code, Sec. 1661, 1699.
   WHITING, J.

The following case is presented by the stipulation of facts and' the trial court’s findings herein-: A., the -owner of certain land, leased the same t-o B., who thereafter had in his possession certain grain belonging to- A. C. -was a grain -buying and storing corporation at a neighboring market to-wn, and C. was informed by A. that it should store all of A.’s grain delivered to it, an-d should issue storage -Checks therefor and deliver the sam-e tó A. A. instructed B. to- -haul his grain to- C. and to- take storage tickets therefor. Before B. delivered A.’s grain to C., B. informed C. that he (B.) would deliver A.’s grain to- it and that it should issue storage tickets therefor. Pie- further informed- C. that his (B.’s) hired man, D., would deliver the said grain. D. delivered A.’s grain to C., and C. knew -that it was A.’s grain w-hen it w-as so -delivered. D., without any -authority therefor, demanded of C. -that it deliver to -him a cash ticket for such grain, an-d' C. delivered su-ch -cash ticket to D. contrary to- the previous' instructions received from A. and B., and knowing that the party to whom such- ticket -was delivered- was not A. S-aid cash ticket was issued in the n-arne of A., and D. forged the name of' A. on the back of said ticket and -drew the money on the same-. A. demanded- storage tickets for said- grain; C. refused to- give him such tickets; and A. sued for -the grain o-r its value. The trial court rendered judgment in favor of A. for the value of suc-h grain, C. being unable to -deliver possession thereof to A. From such judgment .and an order -denying -a new trial C. Appeals.

C. -contends that D. was the subagent of A. In this C. is clearly in -error. D. was (but the mere servant of B., without any authority, either actual -or ostensible, to enter into a contractual 'relation with C. -o-n behalf of A.; th'e limit of his power was merely to deliver the grain, and of this fact C. had been fully advised. Sections 1476 and 1656, C. C.; 2 C. J. 423.

Appellant urges that, .inasmuch as C. acted in good faith, and one of two innocent parties must suffer, he should suffer who made it possible for bis agent to defraud him; and it contends that A. made it possible for D. to defraud him. Not only was D. not an agent of A. -but A. did everything that a reasonably prudent man could and should do to advise C., and it was solely through the negligence of C. that it became possible for D. to commit the wrong. Against the clear instructions of both A. and B., C. saw fit to accept D.’s statement in regard to his authority to- sell the grain; it accepted such statement at its own peril. Shull v. New Birdsall Co., 15 S. D. 8, 86 N. W. 654; 2 C. J. 562-564.

The judgment and order appealed from are affirmed.  