171 Wis. 73 | Wis. | 1920
Lead Opinion
The following.opinion was filed January 13, 1920:
The appellant Hume assigns as error: (1) that there is no evidence to warrant the instruction to the jury given by the court to the effect that he, Hume, was the agent of the owner, Shepard; (2) or that Crosby was such agent; (3) that there is no cause of action shown as against1 him, Flume; (4) that the representation made by Crosby that the bottom price of this property was $4,000 was not within the scope of Crosby’s employment; (5) that there is no ground for liability against the agent Cro.sby and therefore there can be none predicated against Flume; and lastly, (6) that there is no evidence to support the finding of the jury^ to the fourth question of the special verdict.
However much Mr. Hume may have felt justified, from his manner of dealing with Mr. Shepard and possibly from more or less of a custom among people engaged in that line of business, in proceeding to deal with this farm as though he were the owner and’therefore fixing such price upon it
In offering this property for sale as he did, Hume could only act on his own behalf in cáse he had such a legal interest as would warrant such a course; if he did not possess such interest he was in law an agent of Shepard, the real owner. Not having placed himself in the first position, the legal consequences of his acts necessarily placed him in the second. The trial court was therefore correct in his charge to the jury in summarizing the situation by saying that Hume was the agent of Shepard. As between Shepard and Crosby, the latter was therefore a subagent of the former, conceding Hume’s right to employ such a subagent.
The contention on the third point, to the effect that there is no cause of action against Hume, also cannot be sustained.
Although Crosby was subagent for Shepard he was also at the same time agent for the defendant Hume in this transaction with the plaintiffs. As such agent for Hume he represented to the plaintiffs that the lowest price for this property was $4,000. Hume fixed that price himself, and, knowing that it was being made by Crosby to the plaintiffs, received the benefit of such representation. Having profited thereby, he, as principal for his agent, Crosby, must be held chargeable with the damage done to the plaintiffs by their relying upon and acting on such representation. First Nat. Bank v. Hackett, 159 Wis. 113, 119, 149 N. W. 703.
On the fourth point the evidence warrants the conclusion that, in making the representation to the plaintiffs as to the price being the lowest, Crosby was acting within the scope of his employment. Hume fixed this price, gave it to Crosby to be given to possible purchasers, and it was therefore strictly within the scope of the employment to so represent it.
The question argued in the fifth proposition as to whether or not there was a liability against Crosby is immaterial so far as defendant Hume is concerned. His liability is predicated upon that which was done on his behalf by Crosby, who acted only as agent for him and from whose acts as subagent Hume reaped the benefit. Hume alone was the moving cause for this error of fact which resulted in damage to plaintiffs, therefore he alone must assume the consequent liability.
The finding of the jury embodied in their answer to the fourth question of the special verdict, that Crosby had reasonable grounds to believe that the bottom price for this property was $4,000, is supported by the correspondence between the two defendants and the testimony. Crosby dealt with Hume alone, and not with Shepard. It was Hume who fixed the price, and he confirmed what Crosby had done in regard to the same by accepting the result.
On the appeal of defendant Crosby we deem it necessary to discuss but one of the several points urged by him.
Being satisfied, as we have above indicated, that the jury were warranted in arriving at the conclusion that Crosby had reasonable grounds, based upon his transactions with
It follows that the trial court was right in awarding judgment against the defendant Hume, but erred in denying the motion of the defendant Crosby for judgment in his favor.
By the Court. — The judgment is so modified as to discharge the defendant Crosby from any liability thereunder, and it is allowed to stand as against the defendant Hume. Appellant Crosby to have his costs on this appeal as against the plaintiffs, the plaintiffs to have theirs as against the defendant Hume.
The appellant Hume moved for a rehearing.
In support of the motion there was a brief by E. D. Minahan of Rhinelander, attorney for the appellant Hume.
In opposition thereto there was a brief by Charles F. Smith, Jr., of Rhinelander, attorney for the appellant Crosby, and a brief by J. & M. Van Hecke of Merrill, attorneys for the respondents.
Rehearing
On April 5, 1920, a motion was filed by the appellant Crosby for an order amending the mandate. The following opinion was filed May 5, 1920:
Per Curiam. The decision and mandate of this court on the appeal in this case determined that the defendant Crosby was entitled to a judgment in the court below of dismissal of the action as against him. Upon such a judgment in the circuit court he would be entitled to costs in his favor as against the plaintiff as a matter of course. For this reason we do not deem it necessary to change the mandate, and the motion to amend it is therefore denied without costs.