The opinion
Thompson, J.
(dissenting) — There are none so blind as those who will not see. This truism rules the case at bar; but because it is not applied by the majority I am compelled to disagree.
My dissent is not because of any misstatement of the applicable rules of law in the majority opinion. I have no controversy as to the principles stated. But I am convinced the facts have been ignored or misconstrued. The plaintiff’s own testimony shows that he had full knowledge, or the known means of knowledge, that the defendant was acting as agent and the names of his principals in the transaction. He testified that he inspected the hogs which he later purchased, when they were in their pens before they were brought into the sales ring. This question and answer appear in the record: “When did you first know who the owner of the pigs was? A. Well, I might have read it on the gate down there. I paid- no attention, it was just a strange name to me.” (Italics supplied.)
Again, there is this testimony: “Q. Do you remember who told Tommy [the defendant] how to sort these pigs when they was being sold? A. I know they said they had to be sorted in the ring. Q. Who said that? A. No, I don’t know. There was some that belonged to Junior, and the bigger bunch — how was that — well, some they had a W or something on them, red mark. I think the bigger bunch belonged to his father. Q. Bigger ones belonged to the father and the others to1 the son, is that right? A. Yes. Q. So they had to sort them? A. Yes. Didn’t see Mr. Allen. Wouldn’t know Mr. Allen if I seen him; wouldn’t know him from you.”
C. M. Allen, who owned some of the hogs which the plain *11 tiff purchased, told of the system used for showing the ownership : “When they unload them, they make out a ticket and put the pigs in a pen. Q. And on the ticket your name and number of animals that you have! A. That’s right. Q. And that is on the pen where you stick it up on a little mousetrap ? A. That’s right. * * * These pigs were marked separate and my son’s were sold separate.”
Alfred Nagel, a witness for the plaintiff, testified that he had attended sales at the defendant’s sales barn for 6 or 7 years. Further: “Q1. When you come to the barn looking for hogs, you go back in the pens to look them over before the sale? A. Yes. Q. And that is the common procedure of all the prospective buyers to go through the pens and look at all the pigs or cattle or sheep or whatever they are selling, isn’t that true ? A. That’s right and also look at the tickets and see where they come from, see whether you know the party that run them in and whether they come from a good home.”
As I read the plaintiff’s own testimony, he inspected the pigs, saw the tickets with the owners’ names plainly printed, but paid no attention because he did not know them. They were just “strange names” to him. He also said that when the hogs were sold the two bunches of Allen hogs were sorted out in the sales ring, because of the different ownerships. “One was the father and one was the son — I didn’t pay any attention.” Again, as to the sorting: “There was some that belong to Junior [the son’s name is C. M. Allen, Jr.], and the bigger bunch * * * I think the bigger bunch belonged to the father.”
The testimony of Alfred Nagel as to the custom of inspecting the hogs before buying, and looking at the names on the slips attached to the pens to see to whom they belonged, is undisputed. This was offered by plaintiff’s witness.
The rule is thus stated in 3 C. J. S., Agency, section 216, page 125: “An express- notice of agency and the identity of the principal is not necessary, however, if the third person may be charged with notice by reason of the attendant circumstances and the facts surrounding the transaction, coupled with the general knowledge that transactions of the agent in that particular line of business are entered into in his character as agent, *12 not on his own behalf * * But it is not necessary to go so far here. The plaintiff admittedly saw the slip with the owners’ names on the pens, but paid no attention because they were “strange names” to him. He should not now be heard to say he was not advised that the defendant was acting- as agent for principals whose names were made known to the plaintiff but were ignored by him because he has no personal acquaintance with them. There was no room for a finding by the trial court that the agency or the names of the principals were -not disclosed to the plaintiff before the sale. The plaintiff’s own testimony forecloses that.
I would reverse, with directions to enter judgment for the defendant.
SNeul and Stuart, JJ., join in this dissent.