Kelly v. Phelps, 57 Wis. 425

Kelly v. Phelps

57 Wis. 425 | Wis. | 1883

LyoN, J'.

The authority to the plaintiff to sell the defendant’s wood is found in the letter of the defendant of February 13th, the price being modified by the letter of March 2d. The testimony tends to show that plaintiff made contracts for the sale of 500 cords before any further modification of plaintiff’s authority was attempted. It is contended on behalf of the defendant that the letter of March 26th required *428tbe plaintiff to sell all of the wood in one lot, and consequently deprived him of authority to dispose of the same in parcels. If that is so, it could have no effect upon sales made before that letter was received. The previous letters, under which it is claimed that the 500 cords were sold to Case & Oo. and Fillings, contained no such restriction upon the power of the plaintiff, and if he made those sales, as he claims, he is entitled to his commissions thereon. But we do not think the letter of March 26th admits of the construction contended for. We think the fair and reasonable construction of it is that the dry and green wood should be sold together in such proportions that the whole of the wood should be sold at the specified prices. The dry wood being the most valuable and finding a readier sale, would, if sold with it, facilitate the sale of the green wood. This, we think, is the plain and obvious meaning of the letter of March 26th.

If the plaintiff produced customers ready and willing to purchase the wood at the specified prices, before revocation of his authority, he is entitled to his commissions on the amount those customers would have taken, although the defendant refused to deliver the wood. To entitle him to his commissions we do not think it essential that the plaintiff should have entered into written contracts for the defendant with such customers in order to bind them under the statute of frauds. It is sufficient if the customers were ready and willing to perform their verbal contracts with the plaintiff to purchase the wood. It was substantially so held in the late case of Connor v. Semple, ante, p. 243.

Thus far our views seem to accord with those of the learned circuit judge, expressed in his instructions to the jury. But he gave one instruction which we think erroneous. It is in these words: “ If the defendant revoked the agency of the plaintiff, and the plaintiff, notwithstanding such revocation, went on and completed the sale of the wood, and immediately thereafter notified the defendant thereof, *429the defendant was bound to give the plaintiff notice of his dissent within a reasonable time thereafter; otherwise . he must be held to have acquiesced in and ratified the acts of the plaintiff, and will be liable for his commissions. Such dissent on the part of the defendant must have been clear and positive.” This instruction applies the rule of law which binds the principal, in certain cases, to a third person for the acts of a former agent whose agency has been revoked, to a controversy between the principal and such former agent. If, after revocation, the former agent enter-into a contract for the principal, within the scope of his original authority, with one who had dealt with the agent as such before the revocation, and who makes the contract in good faith, without notice of the revocation, the principal will be bound to such third party, or at least he will be bound unless he promptly repudiate the act of his former agent. The rule rests entirely upon the good faith of the person so dealing with the former agent, and holds the principal to liability or to the duty of prompt action, because he had given credit to his agent by appointing him, and thus put it in the power of the latter to commit the fraud.

But when it comes to a transaction between the principal and the former agent, the reason of the rule utterly fails, and the rule has no application. Should a stranger, without authority, assume to act as the agent of another, it would be intolerable if such other would be bound to compensate the interloper for his services unless he gave the latter “ notice of his dissent within a reasonable time thereafter.” The law imposes no such obligation upon business men in respect to those who, without authority, interfere in their affairs. If the defendant revoked the authority of the plaintiff to sell wood for him, such revocation was a perpetual notice to the plaintiff that he dissented from each and every act of assumed agency, and as to him no other notice of dissent is required. The jury may have found the revo*430cation, and still, under the instruction, the plaintiff would be entitled to recover commissions on the wood thereafter sold, because the defendant did not dissent when notified of the sale. This is error. We think the record discloses another error, also fatal to the judgment. The plaintiff testified to an express contract that his commission on sales should be five per cent. This was substantially denied by the defendant. If the jury believed the testimony of defendant, the recovery would be quantum meruit. In this aspect of the case the defendant offered competent testimony of the customary commissions in procuring sales of wood. The testimony was rejected. It should have been admitted, to enable the jury to determine the amount of the recovery in case they found there was no express agreement as to commissions.

Other errors are assigned and have been, argued by the respective counsel. It is not deemed necessary to consider them.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.