(dissenting).
I dissent. The majority opinion hardly recognizes some of the pertinent facts from the record, but no good will be served by an attempt to recite them correctly here because even under the recitation of the majority opinion, the verdict of the jury and judgment should be affirmed.
No question of the agency of Brian T. O’Connell as agent of the 0 ’Connell Ranch Company is involved in the case at all. The case is one of conversion if it is anything. The instructions referred to in the majority opinion have nothing to do with the issues and were properly rejected.
Montana Meat Company of Helena v. Missoula Livestock Auction Co., 125 Mont. 66, 230 Pac. (2d) 955, is controlling in the case, and the jury was properly instructed without objection as to that issue in the two instructions which were as follows:
Court’s Instruction 4-B. “You are instructed that under the law the defendant must sell cattle consigned to it unless it knows or has been put on notice that it has no authority to sell the same. Unless you find from a preponderance of the evidence that defendant knew that it had no authority to sell the cattle of Plaintiff consigned to it by the son of Plaintiff, then you must return your verdict for the defendant.”
*38Court’s Instruction No. 4-A. “You are instructed that if you find from a preponderance of all of the evidence in this ease that the defendant herein had actual notice that Brian Thomas O’Connell was not the owner of or did not have authority to sell the cattle here involved, then your verdict must be for the plaintiff and the damages should be fixed in accordance with the instructions elsewhere given, in such sum as you find from a preponderance of the evidence that the plaintiff suffered. ’ ’
Seventeen year old son Tom gave orders to the plaintiff’s ranch foreman, the Railway Company, and the defendant, each of them following the orders. The jury heard all the evidence and under the previously quoted instructions chose to believe the evidence of the defendant.
A second reason is apparent why the judgment should be affirmed. Under the proper instructions, as given, the jury might well have found no damages sustained by plaintiff; it received full market value for the cattle; and it received a higher price than its contract price for cattle covered by the contract. The majority opinion ignores this fact by using an average price, covering contract cattle and inferior cattle included in the shipment. It further appears that plaintiff’s foreman authorized the shipment, and the defendant was required by law as consignee to receive and feed the cattle. The defendant cannot be charged with this expense as damages under any theory.
The writer has briefly indicated, without going into detail, the two grounds on which the jury verdict and judgment should be affirmed and dissents from the view of the majority that any questions of agency instructions are or should be involved.