74 P. 215 | Or. | 1903
after stating the facts as above, delivered the opinion of the court.
1. It is contended by defendant’s counsel that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the demurrer. It is argued that, as no fraud is alleged in the complaint, an action of deceit cannot be founded thereon, and, inasmuch as the damages sought to be recovered are based upon the contract, and not upon the injury resulting from the defendant’s alleged want of authority to enter into the agreement, the action cannot be maintained upon the theory of an implied warranty of such authority. Though there is a conflict of judicial utterance in respect to the form of action against ah agent who has honestly, but erroneously, exceeded his authority, it has been held in this state that an agent who makes a contract on behalf of his principal in excess of his authority is, on the repudiation of the agreement by the principal, personally liable thereon, though he made no false representations concerning his authority, and, as he impliedly warranted that he was empowered to make the contract, the action will be construed as in contract, instead of in tort: Cochran v. Baker, 34 Or. 555 (56 Pac. 641). In deciding that case, Mr. Chief Justice Wolverton, speaking for the court, said: “The agent, by undertaking to act for another as his principal, tacitly and impliedly represents himself to be authorized, as a matter of fact, to so act, and becomes liable if it appears that he assumed as true that which he did not know to be so. The reason upon which the liability is founded is that the party dealing with a supposed agent is deprived of any remedy upon the contract against the principal.
“I instruct you, as a matter of law, that if you are satisfied, as reasonable men, by the evidence, that J. D. Carr wrote the letters to Mr. Adams which have been filed in evidence herein as defendant’s Exhibits A, B, and C, these letters gave defendant authority to make such contract for said Carr as the one set out in the complaint, and you should find for the defendant.”
The request not having been granted, an exception to the court’s refusal so to charge was saved, and it is insisted by defendant’s counsel that an error was thereby committed. The existence of an agent’s authority is a question of fact to be ascertained by the jury, but what the agent may do under the power conferred is a question of law to be determined by the court: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Long Creek Building Assoc. v. State Ins. Co. 29 Or. 569 (46 Pac. 366).
“In determining the value of such crop, you may take into consideration the value of the crop that would have been produced upon said lands if the same had been irrigated, after deducting all expenses of maturing, harvesting, and marketing said crop, if all these items are shown by the evidence not to exceed $1,185, together with interest ato8 per cent from the date such crop was destroyed.”
The plaintiff’s counsel concede that the damages sought to be recovered were unliquidated, and that no interest could be recovered thereon until judgment was rendered therefor, and offer to remit $174.44, which the verdict shows that the jury awarded on account of interest. The language quoted is a part of an instruction, to the giving of which the defendant excepted, without calling particular attention to the question of interest. It is probable, if this part of the charge had been particularly challenged, the court would have corrected it. If not, the defendant would have been entitled to his costs in this court on the appeal; but, not having done so, the interest will be remitted without allowing costs to the defendant.
It was suggested at the trial in this court that it was incumbent upon the plaintiff to negative in the complaint the possibility of his securing water for irrigation from other sources after the defendant failed to supply it,but, if this were so, the answer performs that service, and shows that the water could not have been so obtained.
Conditionally Affirmed.