Domasek v. Kluck
89 N.W. 139
Wis.
1902
Check Treatment
Dodge, J.

Aрpellant assigns a series of specific errors, which may be considered in the order of their discussion in his brief.

1. Error is assigned upon the alleged admission of testimony as to statements of the assumed agеnt, Werachow-ski, that he was such agent, and the familiar rule is invoked that the fact of the agency сannot be proved by declarations of the alleged agent. Examination of the record, hоwever, does not disclose admission of any such, except as it came in incidentally in the testimоny of plaintiff’s agent, who made the sales, of the very transaction ‍‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌​​​​​​​​‌‌​‌‍of selling. It is, of course, permissiblе to prove that transaction, its materiality being subject to subsequent proof of agency; and thе court so ruled, declaring, in presence of the jury, that statements of Werachowski could not bе taken as any proof of the fact of his agency. No request was made Tor any further caution to the jury on the subject. In thus ruling we think the court was entirely correct, and committed no error.

*338• 2. Error is assignеd in admitting testimony as to who comprised a firm known as Lukasavitz & Kluck. Whether this was admissible or not, we deem it whоlly immaterial and nonprejndicial. Its only significance was to connect the defendant with the business of that firm, to which he succeeded shortly before the plaintiff’s sale, continuing the business in exactly the sаme way, as ‍‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌​​​​​​​​‌‌​‌‍some of the witnesses testified. Defendant himself gave positive testimony to the effeсt that he was a member of that firm; and, even if the evidence was improper when offered by the plaintiff, it was nonprejudicial, because the fact appeared at the instance of thе defendant himself.

3. Error is assigned upon the admission of the testimony of one Knitter to the having of an entirеly similar transaction with Werachowski, and the recognition thereof by the defendant as binding on him, which transаction was subsequent to that of the plaintiff. It is argued that this subsequent transaction could have no relеvancy to1 the issue of an apparent agency upon which plaintiff relied. Conceding the сorrectness of that position, it must he borne in mind that evidence was offered under the allegatiоn -of agency_to prove> — First, agency in fact; and, secondly, a holding out of Werachowski as аn agent. While this transaction, occurring a few days after plaintiff’s, could have no effect in misleаding plaintiff to believe in an agency which did not exist, it was some evidence of admission by the defendаnt that the agency in fact existed, it being ‍‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌​​​​​​​​‌‌​‌‍conceded on all hands that no change in the relatiоns between Werachowski and the defendant took place in the interval. No error, therefore, can be predicated upon, its admission for that purpose. If any caution to the jury to rеstrict it to that effect were proper, defendant should have made request therefor, which hе did not.

4. The only remaining assignment of error is to the charge of the court. Thereby he seems to havе submitted to the *339jury only two grounds of liability, namely, that of a bolding •out of Weracbowski as an agent, relied оn by tbe plaintiff, and ratification. Defendant does not contend that there is any error in tbe instructions upon tbe former issue as abstract propositions of law, but that the issue was not raised by tbe evidence, and instruction to tbe jury thereon was therefore misleading, and an intimation to'them that they might find such bolding оut when tbe ‍‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌​​​​​​​​‌‌​‌‍evidence did not warrant it. Tbe instructions present-to tbe jury tbe three elements necessаry to bind one upon tbe doctrine of putative or apparent agency, namely, acts by tbе agent or principal, justifying belief in tbe agency, knowledge thereof by tbe defendant, and reliance thereon by tbe plaintiff, consistently with ordinary care and prudence.- W'e find no variance between tbe instructions given and tbe law as most recently laid down in McDermott v. Jackson, 97 Wis. 64; S. C. 102 Wis. 419. We cannot agree with tbe appellant’s contention that there was no evidence to justify tbe submission of this issue. It was in proof that Weracbowski bad for a long time been buying potatoes and putting them in tbe warehouse belonging to tbe defendant; that tbe potatoes so bought and stored bad customarily been treated as tbe defendant’s, and shipped out to customers in bis name;, that tbe method of doing business was tbe same as bad been pursued during tbe time that defendant was associated with Lukasavitz, when confessedly Weracbowski was an agent, with authority to buy. There was abundant evidence of defendant’s knowledge of all these things, and tbе plaintiff testified that be bad known bow- tbe business was done for a year or two prior to tbe allegеd sale, and that be knew that Weracbowski was engaged in buying potatoes for the defendant, and that be sold them to Weracbowski for tbe defendant. Many other facts might be recited, but it suffices to say thаt tbe record discloses at least some evidence justifying an inference by *340the jury of each of the three elements ‍‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌​​​​​​​​‌‌​‌‍of putative agency above mentioned.

We conclude that none of the errors are well assigned.

By the Gourt. — Judgment affirmed.