89 N.J.L. 247 | N.J. | 1916
We think it unnecessary to consider the legal question so thoroughly argued by counsel, as the facts do not require that we do so. The suit is brought to recove!* damages said to have been caused by the deceit of Myers’ agent. Before the question of the responsibility of the principal for the fraud of his agent is reached, the question of agency must first be proved. Here we think the plaintiff fails. The facts are these: Myers owned real estate in Camden which was leased to Fisher for five years for a rental of $5,000 'a year net, after paying taxes, water rent, sewerage, electric lights and gas bills, interest on mortgage, insurance premiums, and bills for repairs. Fisher seems to have found the lease an onerous one, and desired to have Myers sell the property. On April 24th, 1911, he wrote to Darling commending the property and making statements with reference thereto which are relied on as constituting fraud. Darling brought the matter to the attention of the plaintiff. It is not entirely clear what Darling’s position was. Brown, an officer of the plaintiff corporation, by his testimony sought to give the impression that Darling was acting'for Myers. There is no proof nor any semblance of proof that he was acting with. Myers’ knowledge. Darling’s employment came from Fisher and it is not pretended that Fisher was authorized to employ a sub-agent for M3ers or that Myers in any way recognized Darling as his agent. In fact the plaintiff’s effort was to-show that Fisher himself was Myers’ agent. The difficulty then is that Fisher did not make tlia representations to the plaintiff. We may assume in favor of the plaintiff that Darling was acting for it, and that Fisher’s representation to Darling was equivalent to a representation tothe plaintiff. That brings us to the question whether there was any evidence that Fisher was Myers’ agent.' Both Fisher and Myers deny that there was any relation of agency. According to both, the fact was that Fisher, desiring to get rid of his lease, and to make something for himself out of the exchange, made an agreement on July 12th, 1911, with the plaintiff for the exchange of the Camden property for three tracts, one at
The exceptions of the plaintiff are therefore not sustained.
The trial judge allowed the jury to render a verdict in favor of the plaintiff for' $625 and interest, upon the theory that it had been unable to collect past-due rent for that amount. Fisher and Myers had united in a document which amounted to an assignment of all uncollected rents, and in the settlement an allowance had been made for $625 due from one of the tenants. The fact that the plaintiff failed to collect the $625 would not entitle it to recover the amount of Myers unless he in some way guaranteed its collection. The evidence relied on to prove this guarantee is that of) Brown who testified as follows, referring to a conversation with Fisher: “He assigned it to us but they said if we didn’t get it, we will pay you. Q. Who was to pay in case you didn’t get it? A. Mr. Myers and Mr. Fisher.” There is no testimony that Myers was present at this conversation or assented to what Fisher said. Brown evidently was testifying only to his understanding of what Fisher meant. We are unable to find any evidence that Myers had authorized Fisher to make that agreement. It is true the $625 rent belonged to Fisher, and Myers was with Fisher’s permission credited with the
We think that for this error, the judgment in favor of the plaintiff should be reversed, hut without costs. The record must be remitted for a new trial.
On the appeal of Charles E. Myers—
For affirmance—None.
For reversal—The Ciitef Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Mtnturn, Kaltsch, Black, White, Terhune, Williams, Taylor, JJ. 13.
On the appeal of Brown Eealty Company—
For affirmance—The Chtee Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Williams, Taylor, JJ. 13.
For reversal—Yone.