Davis v. Henderson

20 Wis. 520 | Wis. | 1866

Dixon, 0. J.

The theory of the complaint is, that the defendant John Henderson was the agent of his mother, Helen Henderson, in the purchase of the lands, and that the conveyance to him was, so far as the rights and interests of the plaintiff are concerned, the same as if the lands had been in the first instance conveyed to her. The difficulty about sustaining the j udgment of the court below is, that there is absolutely no proof of such agency, nor of any subsequent ratification by Helen Henderson, with knowledge that John Henderson assumed to act as her agent. The only proof on the part of the plaintiff tending in the slightest degree to establish such agency consists of parol testimony of John Henderson's declarations made at the time of the purchase. It is presumed to be unnecessary to cite authorities to show that such declarations, made in the absence of the supposed principal and without her knowledge, are entirely insufficient to establish the fact of agency. The fact of agency must first be established by other and independ ent evidence, before the declarations of the agent can in any case be received to charge the principal.

On. tRe otter Rand, the defendant John Henderson, who was examined as a witness in his own behalf, testifies positively that he was not authorized to act, and did not act, as the agent of his mother in the purchase of the lands. His is the only direct and legitimate testimony upon the question.

The action cannot therefore be maintained in its present form. If it can be maintained at all, it must be on the ground that Helen Henderson was a purchaser from the defendant John with notice of the lien or equity of the plaintiff. No such issue is presented by the pleadings ; but in order that the plaintiff may, if so advised, prosecute in that form, we think that the circuit court should, upon such terms as may be just, allow an amendment of the complaint.

By the Court.: — The judgment is reversed, and the cause remanded with directions to proceed accordingly; but if no application to amend is made at the next term after the cause is remitted, then the action is to be dismissed with costa