(dissenting) — I am not -willing to concur with the majority. The action is based on an implied warranty of title in a sale of cattle claimed to have been made by defendants to plaintiffs. Defendants claim that they made the sale as agents of one Moreland and that their agency was known to plaintiffs. It is' conceded that the title failed; Moreland having stolen the cattle from the true owner. Plaintiffs and defendants were what is known as commission merchants, and each knew the other to be such. The sale and manner of sale, as testified to by plaintiff Payne, was that he made the purchase at the stock-pens. That the “sale was made and consummated before the *424weigh tickets were made out.” That thereupon the cattle were weighed by the weighmaster who made out the following weigh ticket, which was then and there delivered to Payne.
“Kansas City Stock-yards Company.
“I., A. & Co., account of W. H. Moreland, T., P. & Co. 17 cattle, 17,310; taken from block 9, pen 15; yarded in block 9, pen 15.
“ Buffington,
“ Weighmaster.
“Date, July 5, 1879.”
That the weigh ticket always shows who is buying or selling. That thereupon he, Payne, indorsed on the ticket the following: “Account of Clark $3.10, T., P. & Co.;” that afterwards, after calculating the amount due, defendants sent plaintiffs the following written instruments which were delivered to Payne at the same time. '
“ Kansas City Stock Yards,
“West Kansas City, Mo., July 5, 1879.
“ M--T., P. & Co. bought of Irwin, Allen & Co.,
live-stock commission merchants, 17 cattle, 17,310 at $3.10, $536.61.
“Paid. Irwin, Allen & Co.”
“Kansas City. Stock-yards Company,
“ Deliver to Thompson, Payne & Co., account of 17 cattle. Sold for account of W. H. Moreland, in block —— pen ■ — —• scale--.
“( Signed.) Irwin, Allen & Co.
“July 5, 1879.”
It appeared in testimony of defendant Irwin that he told Payne that he did not own the cattle. On this point, Payne testified that he would not say that Irwin did not point out Moreland as the man who shipped in the cattle. He thought probably Irwin did do so. The foregoing facts are sufficient to show the grounds of my dissent.
*425It strikes me as clear that the first division of the majority opinion in which the fact that the property was stolen is asserted to be the paramount point in the case, and in which it is stated that the ownership of the property sold is a controlling issue ; and in which it is further stated that the fact of the cattle being stolen rendered defendants liable, even though they acted as agents, is a misconception of the case. The fact of the cattle being stolen is conceded, and their true ownership was not denied at the trial. The title failed, or was never conveyed, for the reason that the cattle were stolen. But plaintiffs would be in equally as good a situation, and would have made out that part of their case just as well, if they had shown the title to have failed by reason of a mortgagee’s or other lienor’s claim. The question is, has the title failed ? It is unimportant as to how or why it failed. If this was an.action by the true owner of the cattle for trover and conversion, then, it might well be said that the defendants were liable “whether they sold as principals ór as agents.” LaFayette County Bank v. Metcalf, 40 Mo. App. 494. But this is not a suit by the owner ; the foundation of this suit is that plaintiffs are not and did not become the owners by the sale to them. The petition is based on the alleged fact that defendants sold plaintiffs cattle to which it turned out they had no title. The suit is, therefore, on the warranty, which is the only action I can conceive of that would lie between vendor and vendee where there is a failure of title. Plaintiffs’ whole case, from end to end, is that defendants sold them cattle to which they had no title, and now they want their purchase money back on the implied warranty of title. This is, doubtless, the reason that the point now made in the opinion did not occur to the trial judge, and was not suggested by counsel for either side. The only question in the case now, and from the beginning, is this: Did defendants make the sale as principals or agents ? Plaintiffs’ whole case concedes that, *426if the contract of sale was made by defendants as agents, there is no personal liability ; in other words, their principal would be liable on the implied warranty, and not them. They contend that- the instrument signed by defendants, which they term the bill of sale, is the written contract binding defendants as principals, and subject to no change or alteration by parol. Defendants contend that the instrument is not a written contract of sale; that it is a mere receipt or “bill of parcels,” wholly outside the rule as to written contracts. And in this I think they are right, for it shows upon its face that it is a mere memorandum, incomplete, and not capable of being understood without parol evidence. But, from the facts of this case, I am not driven to the necessity of so considering it. I think, however, that it is imperative that the contemporaneous writing should be considered with it. There are three written papers in the case, the “weigh ticket,” the “title ticket,” or order for delivery, and the “contract of sale” (as plaintiffs term it and I shall call it). The weigh ticket was first written and delivered ‘to Payne. It stated that the cattle were Moreland’s. But this was prior to the contract of sale, and I shall, therefore, in order to keep with plaintiffs as long as possible, not consider it against them. The contract of sale and the delivery order, however, were executed together and delivered to Payne at the same tipie, as he himself states. Being so executed and delivered, and referring to the same transaction, they should then, under a familiar rule of law, be considered as one paper. Noel v. Gaines, 68 Mo. 649 ; Brownlee v. Arnold, 60 Mo. 79; Waples v. Jones, 62 Mo. 440. So considered, the paper would read as follows :
“Kansas City Stock Yards,
“West Kansas City, Mo., July 5th, 1879.
“M-T., P. & Co., bought of Irwin, Allen &Co., live-stock commission merchants, 17 cattle, 17,310 at $3.10, $538.61.
“ Paid.
*427ilKansas City Stock-yards Company,
“(Will) Deliver to Thompson, Payne & Co., 17 cattle, sold for account of W. BL. Moreland, in block-pen-scales-.
“ Irwin, Allen & Co.”
Reading in that way, and so it must be read, is it not clear of all doubt that defendants acted as agents for Moreland, and disclosed their agency on the face of the written contract ?
The case of Schell v. Stephens, 50 Mo. 375, relied upon by plaintiffs and by the majority, wherever applicable, is favorable to defendants. That case, like this, was a suit on the warranty, the property being stolen. The court there declares the law to be that if one in possession of personal property sells it as his own, at a fair price, there is an implied warranty of title; but that this was not true in case of agents who sell as agents ; and that possession of such agents as pawnbrokers, factors, auctioneers, etc., did not imply title but rather suggested title in others. While thus stating the law, the case further holds that, while such is true, yet an agent máy contract as principal. That is good, as well as familiar, law. And that case only decides that since the agents there entered into a writing which did not disclose their agency they would be held to have contracted as principals, and the writing could not be altered (being complete in itself) by inserting matters showing their agency by parol. The court there considers, and the case shows, that the plaintiffs there would not accept of the principal’s name alone, but took, in addition thereto, the name of the agents as though they were also principals. The case at bar is altogether different. The written paper here disclosed the agency, and expressly states the sale to be for the principal. In other words, the paper in this case discloses exactly what the court in that case said should have been done by that contract. Much of what is said as to the Schell case applies to Sprague *428v. Rosenbaum, 38 Fed. Rep. 386. The writing there was from the agents as principals, and would not have been accepted in any other way ; for when the purchaser was referred by the agent to the principal he replied that he preferred making the purchase from him as he was acquainted with him. The court found, as it well might, that the dealing was with the agent as principal, and on his faith and credit.
It is well enough to state that this matter had been in litigation a great length of time. Plaintiffs instituted suit in Kansas. The cause was appealed to the supreme court of that state, and is found reported in 27 Kansas, 643. In an opinion by Judge Brewer the case was decided against plaintiffs, he stating that the defendants should have had the verdict. On reversal the plaintiffs dismissed and have reinstituted the present proceeding in' this state, where it has lingered till now.