DES MOINES, JANUARY TERM, A. D. 1901.

AND IN THE FIFTY-FIFTH YEAR OF THE STATE.

JAMES WALTON V. JAMES E. DORE et al., Appellants.

Agency:

AGREEMENT ΤΟ BUY JUDGMENT:

Consideration. Mere permission from a judgment debtor to a third party to purchase the judgment against him, without furnishing any money therefor, or agreeing to take the judgment after the purchase, or to pay anything for the services, and such party's promise to do so, do not constitute such third party an agent for the purchase, obligating him to transfer the judgment to the debtor on being reimbursed the amount paid.

Appeal from Howard District Court.-HoN. L. E. FELLOWS, Judge.

FRIDAY, JANUARY 18, 1901.

NOTE-The figures on the left of the syllabi refer to corresponding figures placed on the margin of the case at the place where the point of the syllabus is decided.

VOL. 113 Ia.-1

(1)

ACTION in equity to enjoin the enforcement of a judgment against plaintiff. From an adverse decree, defendants appeal.-Reversed.

John McCook for appellants.

C. C. Upton for appellee.

WATERMAN, J.-Plaintiff sets out the following state of facts as constituting his cause of action: The firm of Dunham, Buckley & Co. had a judgment against plaintiff, which had stood for many years. In October, 1897, he employed defendant Dore to purchase said judgment in his (plaintiff's) interest. Dore bought the judgment at a discount, taking an assignment in his own name, and then made an assignment of it to defendant Stinson. Stinson has caused an execution to issue and be levied on property of plaintiff. This action is brought to restrain the sale under execution, and secure the cancellation of the judg ment on the payment to defendants of the amount paid by Dore for it, with reasonable compensation for his services. In reaching our conclusion we take mainly the testimony of plaintiff as to what occurred between him and defendant Dore. A few incidental matters to which we refer are undisputed. Dore, with whom plaintiff was wholly unacquainted, owned or had charge of the collection of another judgment against plaintiff. Dore lived in St. Paul, Minn. Plaintiff was a resident of Howard county, in this state. Dore came to see plaintiff, and, while investigating plaintiff's financial condition, discovered on the records of Howard county the judgment held by Dunham, Buckley & Co. Dore arranged the matter he came for, and then, as plaintiff tells the story, this occurred: "He (Dore) called. me behind the stacks, and said he felt sorry for me, and would buy that (the judgment of Dunham, Buckley & Co.) up as cheap as he could. He thought he could get it for 25 cents on the dollar. I told him to go ahead and do so. The

conversation was behind the oat stacks on my farm.

Q.

You say that he said he would buy it up for you if you wanted him to? A. Yes, sir." Now, we shall accept this statement of the transaction as correct. This was in September, 1897. Dore bought the judgment in March, 1898. Is it plaintiff's property, subject only to his reimbursing Dore for what he paid, and giving him a reasonable compensation for his trouble? Plaintiff gave Dore no money with which to buy the judgment. He did not, except by implication, agree to take it off his hands when purchased, or to pay anything for Dore's services. Dore was not even to buy it in plaintiff's name. Indeed, it must have been understood that he was not to attempt doing so, for the whole scheme would have been thereby defeated. The judgment creditors would hardly have discounted the judgment to the debtor. To our minds, the whole transaction appears to be nothing more than a promise by Dore to make a gift of a part of the debt to plaintiff, and such a promise he was not obliged to carry out. It is thought by appellee that Dore was the agent of plaintiff. But this position cannot be sustained. It is manifest that, in treating with Dunham, Buckley & Co., Dore was not to appear as acting for plaintiff. The success of the transaction, as the evidence clearly shows, was dependent on the fact being kept secret from the judgment creditors that plaintiff had any interest in the purchase of the judgment. It is very questionable whether the subject matter of the alleged agency was lawful, but we do not rest our conclusion on this ground. An agent is one who derives authority from another to do a certain act. Evans, Principal & Agent, 1. What authority did Dore get from plaintiff? After the conversation with plaintiff to which we have referred, what power had Dore that was not possessed by him before that time? He always had the right to buy this judgment in his own name with his own money, nor was any restriction put upon plaintiff by the creation of this so-called "agency." He was still at