177 Wis. 4 | Wis. | 1922
. This appeal presents no question upon the facts, there being no bill of exceptions.
Although the court found that the defendant Edward
Plaintiffs brought this suit against both defendants as principals jointly liable upon what was evidently an oral contract. The action properly could continue as it did against both as principals until it appeared with reasonable certainty that the true situation was that the contract was made for the sole benefit of the one only .as- principal and that the other was in fact but an agent of the real party. Such situation did appear at the close of the testimony, as shown by the findings. The plaintiffs should have then elected whether to hold the real principal because it was her contract, or the agent because of an estoppel to deny his being a principal arising from his acts or representations that he was such. But defendants are not jointly and equally liable, and the judgment cannot now, the agency being an established fact, go against them both. Marsch v. Southern N. E. R. Corp. 230 Mass. 483, 499, 120 N. E. 120, and cases cited; Reid v. Miller, 205 Mass. 80, 85, 91 N. E. 223; Berry v. Chase, 146 Fed 625; Phillips v. Rooker, 134 Tenn. 457, 464, 184 S. W. 12; Pittsburg P. G. Co. v. Roquemore (Tex. Civ. App.) 88 S. W. 499; note in 21 L. R. A. n. s. 786; 2 Page, Contracts (2d ed.) § 1776; 2 Corp. Jur. 844; 21 Ruling Case Law, 894.
Other assignments of error are based upon criticisms as to the form of the findings, but we deem none of them well taken or of sufficient importance to be discussed.
• The plaintiffs should be required to elect as against which defendant judgment should be entered and thereupon the action be dismissed as to- the other.
By the Court. — Judgment reversed, and the cause remanded for further proceedings in accordance with this opinion.
