Cotzhausen v. H. W. Johns Manufacturing Co., 100 Wis. 473

Cotzhausen v. H. W. Johns Manufacturing Co.

100 Wis. 473 | Wis. | 1898

Winslow, J.

It is very plain, from an inspection of the complaint, that this action was originally an action to recover damages for the breach of the warranties and representations contained in a contract to furnish and lay an asbestos roof on the plaintiff’s building, which contract was alleged to have been made with the plaintiff, August 5,1890, by the II. W. Johns Manufacturing Company of New York, through its Milwaukee agents, and to have been assumed by the defendant corporation upon its formation in June, 1891. The evidence entirely failed to show that either Cross or Monsted & Co. were or claimed to be agents of the Johns Company, but showed that they were simply exclusive dealers in the Johns patent roofing in Milwaukee, and that Monsted & Co. made the written roofing contract with the plaintiff solely on their own behalf. Such being the case, the trial court did not submit to the jury any questions upon the subject of this alleged agency, and so this contention disappears from the case.

It is now claimed, however, by respondent, that the action is still an action upon contract, and this contention is based upon the fact that one Near, who was a traveling salesman *479for the Johns Company of New York, called on the plaintiff, witli Gross and Monsted, and made oral representations and presented printed circulars, as to the merits of the Johns patent roofing, which were false, but which were relied on by the plaintiff, and induced him to enter into the contract with Monsted & Co. These facts, it is said in respondent’s brief, constituted a contract on behalf of the Johns Company to the effect that, “if you will give our roofing the preference over others and intrust Monsted with the execution of the work, then we, the IT. W. Johns Company, agree and undertake that the material furnished and employed shall in all respects conform to our representations, and possess the characteristics claimed for it by writing and parol, and, in case of breach, to make good to you the loss thereby sustained.” It is entirely clear, however, that but one contract was made, and that was the written contract between the plaintiff and Monsted & Co. If, by false representations, a stranger induces two persons to enter into a contract, such stranger does not thereby become a party to the contract. He may perhaps become liable in tort if damage results to the contracting party who is induced to make the contract relying on the false representations, but he is not liable in an action upon contract, for the very plain reason that there were no contractual relations between the parties. No contract between the plaintiff and the Johns Manufacturing Company was even attempted to be made.

There being no contract shown except with Monsted & Co., there can be no recovery against the defendant upon the ground of a breach of contract. Even if it were possible to convert the action into a tort action, there can be no recovery against the defendant, because it was not in existence at the time of the commission of the tort, and has never assumed any liability therefor.

By the Court.— Judgment reversed, and action remanded for a new trial.